2
pm

2.3
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Q
8585The
Chair: Good afternoon, and thank you for coming. Will you
briefly introduce yourselves, and then we can have the first
question?

Matthew
Dodd: I am Matthew Dodd, co-ordinator for the Special
Education Consortium, which is a consortium of more than 30
professional and voluntary sector bodies that work on a consensus basis
and bring that consensus to Parliament during the passage of
legislation.

Christine
Lenehan: I am Christine Lenehan. I am director of the
Council for Disabled Children, and I am also working as a strategic
partner with the Department for
Education.

Srabani
Sen: Hello, I am Srabani Sen. I am chief executive of
Contact a Family. We support families with disabled children. Today, I
am here as a board member of the Every Disabled Child Matters
campaign.

Q
86Mrs
Sharon Hodgson (Washington and Sunderland West) (Lab):
Good afternoon. I am sure that you have heard the news and are as
pleased as I am that the Minister has said that there will now be a
duty on clinical commissioning groups to provide what is set out in
education, health and care plans. Obviously, we are still waiting to
see the detail of that and the actual

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clauses. I imagine that that was going to be one of your biggest asks,
so what is your next biggest priority, in terms of
amendments?

Srabani
Sen: There are two areas on which we would really
like to see some clear amendments. The first is the scope of the Bill.
We can see no rationale or logic as to why you would confine the
special educational needs provisions in the Bill to children with
special educational needs, and exclude those children who have
disabilities but do not have special educational needs. We have
previously raised that and have been told, “Don’t worry,
because those kids will be covered by the equality legislation and
other legislation, such as the Children Act.” However, one of
the guiding principles of the Green Paper, which was published a couple
of years ago with the “Next Steps” document, was how to
make the system simpler for parents, and for the children and young
people going through it. This is just adding to the complication,
because if you are a parent, you will have to work out whether you are
covered by one bit of legislation or another. That also complicates
matters for the professionals trying to support them. One of the key
things that we will be asking for is to extend the scope of the
provisions to all disabled
children.

The
second area in which we think we need some strong amendments is the
local offer. We are delighted with the concept of the local offer, and
certainly, in our dialogue with Government, we have been talking very
much about how we can ensure that we achieve the right outcomes for
those children who are not covered by an education, health and care
plan. However, if you look at the wording of the Bill, it could well be
interpreted, and is set out, as simply a duty to publish information
about local services. There is nothing about how you make sure that you
have a needs-based assessment of what the population in your area
needs, how you make sure that the local offer actually delivers on the
outcomes defined, or how you hold local authorities to account for
those. Those are probably the two areas on which we would want most
amendments.

Q
87Mrs
Hodgson: Christine and
Matthew?

Christine
Lenehan: We are interested in working with the
Department to look at how the Bill delivers integration. One of the
things that we will be working closely on is the role of health and
social care in the planning and in the process. I do not think it is
necessarily about major amendments at this stage; it is about really
understanding how an incredibly complex planning system becomes a
single planning system, because going back to what Srabani said, that
is the basis. We have more work to do on how we bring the range of
assessments together and how we end up with a single planning process
and a single point of
redress.

Matthew
Dodd: To reiterate what Christine says, we will have
a duty on clinical commissioning groups to deliver; the next thing we
will be looking for is a duty on social care, linking in existing
pieces of legislation—section 17, and Children Act assessments.
We will want to get those into the education, health and care plans,
and get a duty to deliver the services identified in those plans in
relation to social care. Then, as Christine says, we will want a single
point of redress, both for complaints—the local government
ombudsman or the parliamentary and health service ombudsman has a role
here—and in

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terms of the tribunal being able to hear appeals about the content of
education, health and care plans in relation to health, social care and
education.

Q
88Mrs
Hodgson: There are children who may or may not have a
disability, but who do have a long-term medical condition; I am
thinking especially of children with diabetes or epilepsy. Obviously,
children with epilepsy can have other conditions that may or may not
warrant them an education, health and care plan, but thinking more
along the lines of medical conditions in and of themselves, if we are
reforming this system in a once-in-every-30-years opportunity, what is
the best way to account for and monitor those children, and to make
sure that their needs are
met?

Christine
Lenehan: We have yet to understand fully the links
between what the Bill proposes, the changes being made to the health
system in the next couple of weeks, and how they will come together. We
will want to look in more detail anyway at the commissioning of
children’s services in the new health system: where they are in
what will be the eight different levels of commissioning in the new
health system, what the joint commissioning duty in the Bill means and
whom it extends to, and what supplements that. We are still looking at
a new version of the medicines in schools guidance, for
example—where that links to, what requirements we are putting on
new schools, new ways, whatever. The issue regarding medical conditions
is wider than the Bill. As the new health system comes in, we are
almost having to take a step back from it and ask how all this change
comes together.

We
have significant concerns in relation to issues such as diabetes, where
we are not seeing a join-up, whereas we had been doing better in some
ways. We cannot understand yet whether that join-up around diabetes is
not happening because people are confused about new health
commissioning arrangements, or about new school arrangements and
therefore what academies can and cannot do, or whether people are
worried about school nursing arrangements. I think there is some
stepping back, but you are right that we cannot create a new integrated
Bill from any set of provisions that allows a group of children to keep
falling down the
gaps.

Q
89Mrs
Hodgson: Do you have anything to add, or are you happy
with
that?

Srabani
Sen: I think that covers it really
well.

Matthew
Dodd: If I may add to this, obviously the duty to
provide health services for children with EHC plans is great, but
children with diabetes are unlikely to be able to access education,
health and care plans, because significant SEN will be the trigger. We
still hope that the Government might consider triggering plans through
different routes, but if we are to go down that route, there will be a
need to look at issues such as health commissioning, how this links in
with health and wellbeing boards, and so on, to improve commissioning
locally.

Q
90Caroline
Nokes (Romsey and Southampton North) (Con): Picking up on
Sharon’s point about children and young people with health
issues, how do you feel that the EHC plans will work for young people
who might have mental health conditions? As we try to
move

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towards parity between physical and mental health, do you have any
concerns about those young people who might have, for example, eating
disorders?

Srabani
Sen: The difficulty with the way the legislation is
currently framed and phrased is that everything about a child is viewed
in relation to their educational needs. Children are more than the sum
of their educational needs; they are actually often people with health
needs and social care needs, and needs for leisure and so on. Part of
the difficulty with the way the Bill is framed is that it suggests that
your health needs—whether a mental health need or anything
else—will only be considered in relation to whether or not
tackling that health need will solve your educational need and help you
achieve your educational outcomes. That is a very peculiar way of
looking at children. We do not look at children without disabilities or
without illnesses in that way, so why look at children with additional
needs in that
way?

Q
91Caroline
Nokes: Thank you. On an unrelated point, most of us who
have dealt with parents of children who have special educational needs
are very conscious of those parents having to fight for their needs all
the time. Do you feel that this Bill addresses those parents who
perhaps are not as articulate or not as determined, or is there a
danger that those children will still fall through the
cracks?

Srabani
Sen: From our perspective, there is huge potential
for that fight to continue. It might be a different-looking fight,
perhaps around trying to get an education, health and care plan for
your child, because you think that is how you will get your
child’s needs met. I think there is a real danger that unless
the whole system works, parents, or indeed professionals, will inflate
the educational needs of a child in order to get the maximum support,
which is clearly the wrong way round as a way of thinking of those
children. This is why we are so keen to make sure the local offer is
really strong. One of the difficulties is that it is much easier for
very articulate middle-class parents to understand how to work the
system in the best interests of their child. One of the reasons why we
want the scope of the legislation to cover all disabled children is so
that there is a simplified system that covers all children who have
those additional needs. This would make it easier for parents and
minimise the need for a fight. I do not know whether you would add to
that.

Christine
Lenehan: My view is that it has the potential to take
the fight away. It is worth remembering that the Bill is part of a
process of culture change. One of the really interesting things I have
been doing as part of my job is going round the country talking to
parent carer forums and parent partnership services. We have four
different clauses in the Bill about information and support, and
understanding how they work and come together and how we are doing
that. In areas where parent carer forums have worked really hard in
partnership with local authorities, we see a change in how that battle
is joined. We see a change in how information is provided, how people
are supported, and how they understand. There is a lot of wasted energy
in the system, because people do not get accurate information about
entitlements, support and a whole range of things. The potential in the
Bill to take fight away is there. The issue is about seeing the Bill as
part of a much wider cultural change programme.

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One of the
really interesting things we note as we go around is the work we must
do with professionals. Many of the professionals we are working with
still see empowered, knowledgeable parents as a threat, so they respond
to the threat. If you try to understand how to work with professionals
to see parents as partners and not a threat, and work with parents to
understand how to get the best out of professionals, usually by
understanding their limitations, that is when you start to change the
dynamic. The Bill in itself cannot do that. What it can do is support
the foundations for that
activity.

Q
92Steve
Reed (Croydon North) (Lab): I want to ask about personal
budgets. What impact do you think the provisions will have? Are the
pilots flagging up any concerns, and do you think the provisions go far
enough?

Christine
Lenehan: It is really interesting, and again, this
goes back to some of the integration points: we have been involved, as
a council, in working with the Department on direct payments for
personal budgets for a number of years, and we have had some real wins
for parents in relation to social care and personal budgets when those
budgets are supported properly.

To take a
really simple example, I have worked with families with more than one
severely disabled child who have the indignity of all sorts of people
appearing on their doorstep to provide intimate care for their child in
packages that they cannot support and from people they do not know. I
have seen that system replaced with a personal budget that puts a
family in charge. In social care personal budgets, we have seen some
really good examples of change when they are supported properly and
when local authorities see that through a brokerage system and not an
abdication system. We have also seen some really good moves forward,
although much slower and much less well developed, in relation to the
provision of personal health budgets for things such as equipment,
support and so on.

The
pathfinders have also been looking at personal budgets in education,
and it is probably fair to say that the case is not yet proven. One
thing I am interested in looking at as the Bill goes forward is how to
join up the whole package of personal support for families across the
piece, so that they can choose—I think this is what the
Government intend—the level of choice and control they have over
their own environment and how that works. That is where we are now.
Pathfinders are still struggling and still trying to make it work, but
they are beginning to see where the opportunities are to take the
agenda
forward.

Q
93Mr
Reed: Do the provisions in the Bill allow enough scope for
what you have just described to
develop?

Christine
Lenehan: I think the provisions in the Bill could. It
partly depends on what comes out in regulations under the clause in the
Bill. Certainly one of the things I would want to see is personal
budgets in education as part of a wider frame that includes personal
budgets in social care and health. Then I think the provisions
do.

Q
94Chris
Skidmore (Kingswood) (Con): It is estimated that about
three quarters of disabled children have special educational needs, and
so would be covered by the Bill. Do you all agree with that?

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Christine
Lenehan: We know where you have got the statistic
from,
yes.

Q
95Chris
Skidmore: Do you agree with
it?

Christine
Lenehan:
Yes.

Q
96Chris
Skidmore: A moment ago, we mentioned covering children
with specific needs, such as asthma and diabetes. Am I right in saying
that they do not need specific educational provision, and that you are
looking to widen out the terms of reference from special educational
needs?

Matthew
Dodd: That is precisely one of the groups that would
have a disability but would not be covered by the special educational
needs definition. The absence of that definition from the Bill means
that the review functions, the joint commissioning functions and the
local offer functions will not apply to that group of children. That is
really what we are getting at with this
point.

Q
97Chris
Skidmore: I am sure we all recognise that we have one of
the tightest funding settlements for decades. Where do you think it
would be fair for the Government to place their priorities? I do not
want to sound like I am favouring any one group in particular. Pupils
with diabetes or asthma may come from a social background that is very
different from that of children who have been abused or adults with
special education needs who need social care
services.

Matthew
Dodd: These are already statutory duties. Under its
constitution, the NHS has a duty to meet clinical need. We are not
saying, “Go beyond that.” If there is an identified
clinical need, that should be part of this
process.

Srabani
Sen: The issue is not that it would cost more, in our
estimation. There is actually the potential for it to cost less if you
have a more co-ordinated system. As Matthew said, there are already
statutory duties; they just fall under different bits of the system. If
the core objective, on which we thoroughly agree with the Government,
is to simplify the system, we are saying, “Use that opportunity
really to simplify the system, and you could save
money.”

The
other side of this, when we talk about things like how you develop the
local offer and local service provision, is that working with parent
carer forums can be hugely beneficial. There are some really strong
data showing that where you involve parent carer forums at a strategic
level in designing services in an area, not only do you get better
quality services, but you often get far better value for money and much
more targeted investment of the money you have, however limited it is,
in the best
place.

Q
98Chris
Skidmore: So that the Committee can get a clearer picture
of what you are talking about in terms of that structure, could you
give specific examples of where you feel that extending education and
health care plans would benefit particular children? Is there anything
you have in mind, rather than just setting out the general
picture?

Srabani
Sen: Sure. We have given some examples already. We
have talked about children with particular long-term conditions, like
severe asthma or diabetes.

Column number: 45

There will be other children who have, for example, conditions that
affect their mobility, which has no impact on their ability to learn,
but if they had a co-ordinated assessment of their needs and therefore
a co-ordinated approach to meeting those needs, that would make the
system simpler for the parents to understand, and it would make it
simpler for the children to get the services they want. It would also
make it simpler for the providers to know how to work together in the
best possible way and to make the best use of the budgets. So it is
about a whole range of
people.

I
am not a legal person, and I am sure somebody will correct me if I get
this wrong, but, under the Education Act, there is a two-part
definition of the children we are talking about. One group is children
with special educational needs; the other is disabled children, and
they are defined as anybody with a sensory or physical impairment that
does not stop them accessing education. In some cases, they will still
have quite intense needs, but the way the Children and Families Bill is
framed, they would not be covered in terms of benefiting from a better,
sleeker and more efficient system. Is that fair, would you
say?

Christine
Lenehanindicated
assent.

Q
99Mrs
Hodgson: Reading through the evidence from Every Disabled
Child Matters, Matthew, you say you welcome the entitlements that young
people will get in further education up to 25, and I think we all do.
We will hear from the Association of Colleges, which has particular
concerns about funding, but that is not for you. You go on to talk
about young people who are not in education, employment or training,
and you say a plan would be vital to get them back in. Can you expand
on that
point?

Matthew
Dodd: Clause 45—the ceasing to maintain
clause—is probably one of the clauses that need the closest
scrutiny. The draft provisions said the plan would automatically end if
a young person leaves education or training, or starts an
apprenticeship. That has now been removed, but it is not clear whether
the intention is that apprenticeships will be covered and that young
people who are NEET and who are within the raising-participation age
bracket will keep their plan. Quite how that will work in relation to
the legislation is not really clear. I do not know whether it will be
in regulations or the code of practice. We are arguing that the plan
should go up to 25 regardless, because young people move in and out of
education: they may do a period of supported employment or an
apprenticeship; they may fall out temporarily, go into employment or
want to return to education. We feel that there would be major benefit
in maintaining the plans up to 25, to when they have established
themselves in work, independent living or whatever. We feel strongly
that the plan should continue.

This is the
point to mention: we are very keen to look a bit further into
continuing the plan into university. We think that that is an omission.
You can do higher education courses at colleges, so it will apply in a
college but not in a university. At the very least, we would like the
Committee to explore why universities have been left
out.

Q
100Mrs
Hodgson: Are university students not well covered by the
provisions already?

Column number: 46

Matthew
Dodd: There is disabled students’ allowance,
but care often breaks down when a young person goes to university,
because they move out of their local authority. If they took the
education, health and care plan with them, it would produce better
co-ordination on care, for example. There would definitely be benefits
that we think are, at the very least, worth
exploring.

Q
101Mrs
Hodgson: So you think it should be nought to 25, whatever
their route through education
is?

Matthew
Dodd: We
do.

Srabani
Sen: We would agree. I think we understand the
concept of linking it to education, and we agree with that. It is how
you define education, particularly for these young people. There will
be different routes for them to develop and different sorts of
education that are right for them, whether it is an apprenticeship or
higher education and so on. Again, it is part of simplification and
making a clear route through as they transition into
adulthood.

Q
102The
Parliamentary Under-Secretary of State for Education (Mr Edward
Timpson): Can I take us back to the health duty? We rather
skated over it without too much discussion. Christine, how do you think
the new health duty will help children and young people with SEN in
practice?

Christine
Lenehan: We have known from the outset of the process
that one of the challenges about statements and to the statementing
system is that quite often local authorities have ended up in tribunal
because health has not fulfilled its part of a process. We have had
real struggles trying to understand how to pull something
together.

When
I started out as a social worker 34 years ago, my first visit to a
family was to ascertain whether a child in that family with a severe
disability was having a health care bath or a social care bath. That
argument about health and social care has continued to divide our
system all the way through. If you work with parents of disabled
children, as all of us do, and you go into a conference and within 10
minutes they have not mentioned speech therapy, it is because you are
in the wrong conference. The endless hours that we have wasted on who
provides what, at massive cost to the system, must
change.

We
were really pleased to get the joint commissioning duty as outlined in
the Bill. At the top level, it at least felt like we were getting to
the point of having a sensible look at the rational provision of speech
therapy services, for example, or equipment provision, where we provide
very poor services for a huge amount of money. Now having a duty on
health cements that down from a general to an individual level. We now
have something on the table that says, “These children have a
range of needs. We have a corporate responsibility as a community to
deliver to these sets of needs. How do we do it sensibly?” That
is enormously
helpful.

It
will be challenging—there is no doubt about that—but to
go back to what you said, it will start to end the battleground. That
is also why it paves the way, as we have said, towards a single point
of redress. We are not suggesting that in law you can necessarily
create a single point of redress between three statutory systems
simply, but we think this significantly helps us to look at a

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single-door entry point for family into a redress system. That is hugely
welcome. I was at an event this morning with a number of pathfinders,
and they were struggling to believe it had been achieved. We also
recognise that, in order to make the announcement that we are very
happy you made, there has been a lot of difficult negotiation behind
the
scenes.

Q
103Mr
Timpson: On redress through health, do you want to say a
little bit more about where you think some of the new structures within
the health service can be more closely integrated? I am thinking in
particular of HealthWatch England and its potential to be a champion
for patients and young
people.

Christine
Lenehan: It is a combination of things. I was at a
local authority a while ago; it has an annual children’s
conference called “No Wrong Door”, which has always
struck me as a really good title: wherever parents go to, their needs
will be sorted, whatever they are. I sit on the board for HealthWatch
England which is looking at children and young people’s
interests. We have been looking at local healthwatch, which from
1 April, as part of its establishment, will include
children’s health and social care. It is still early days and we
have been working with parent carer forums around the country to look
at the link between parent carer forums and local healthwatch. We are
looking at that new structure, with health and social care coming
together, to look at what a single redress system looks
like.

I
think it will turn into a swan. I am hoping that from the outside it
will look very graceful and parents will see something quite seamless,
while behind the doors there will be some mad paddling to look at how
the system comes together. One of the things we are really interested
in exploring is whether you can create a triage system, to borrow
another phrase from health. For example, where a plan is not
delivering, we would look at having a very early meeting between
education, health and social care so we understand redress. We know
there are various ombudsmen, tribunals and people who know far more
about what is going on behind the scenes, but the issue is whether we
can use the construction of local healthwatch and a new system around
localism to provide the first stage of a redress
system.

Srabani
Sen: To add to that, it was phenomenally good news to
hear this morning about the duty on health to provide. One of the
things that that helps with enormously is bringing people together to
work together at a service delivery level, but it also gives parents
something solid that they can use when they are having these
discussions with their service providers about how they get the right
services for their child. I do not think we can overestimate the
potential of what you announced this morning. It is phenomenally
useful.

One
question is: how can we take that and also apply it to the local offer?
The vast majority of children will not be covered by an education,
health and care plan. They will be covered by the local offer. While we
are thankful that there is a commitment to be transparent about what
services a local authority may have available, there is something about
adding some teeth to that which is a duty on local authorities to
provide the services they say they will provide and on health to
provide the services that they say they will provide, rather than just
something that is expected to be provided. The vast majority of
children will be covered by that

Column number: 48

local offer and not the education, health and care plan. It is brilliant
that it is there for education, health and care plans but how do we
then transfer that set of commitments to the local offer, which most
children will benefit
from?

Mr
Timpson: May
I—

The
Chair: Can I just bring in Bill, and then perhaps you can
come
back?

Q
104Bill
Esterson (Sefton Central) (Lab): If it is just signposting
for everybody and not on a plan, what happens if there is not a service
in the immediate locality? What are your concerns about lack of
co-ordination?

Srabani
Sen: You have described our concerns really
effectively. Part of the ambition behind the Bill is to make it easier
for children to achieve their potential. If what we are then doing is
saying, “Well, you might be able to get the service but you
might not because it does not exist anymore and nobody is going to
provide it,” you end up in a different battle, which is trying
to find somewhere that will give you the service that you need to help
your child achieve their potential. You are wasting energy, and that
energy should be devoted towards helping your child reach their
potential. The way that you describe is the problem. It will be too
difficult.

Q
105Bill
Esterson: Given the Government’s reluctance to do
more than require signposting, is there anything that you can see
within the framework they are proposing that could firm that
up?

Christine
Lenehan: Part of it is tying together the information
provision bit of the local offer with the duty to keep education and
care services, and now health, under review. We will be looking at what
“sufficient” looks like. We are trying to understand how
the education and care review process looks at sufficient
services.

Q
106Bill
Esterson: Is there a duty for
sufficiency?

Matthew
Dodd:
Yes.

Christine
Lenehan: Within the clause that requires education
and care services to be reviewed, there is a sentence. Matthew is the
geek, he is the clause man who knows all the numbers. It is clause
27.

Q
107Bill
Esterson: Is that not after the event
though?

Srabani
Sen: I agree with Christine, but what I would add to
what she is saying is that there are three elements to making sure that
the local offer works. First, to make sure that it is devised on the
basis of what the needs of the population are in terms of the improved
outcomes you are trying to achieve for your families. In devising your
local offer, it should be a population needs-based approach rather than
just randomly publishing a list, which I do not think is the
Government’s intention, by the way. I really do not think that
that is what they mean, but it is about how you then phrase the
Bill.

It
is then about saying, “Okay, if you are trying to achieve this
set of outcomes, how are you going to monitor whether the local offer
in a particular local area is delivering against the outcomes that you
have

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decided you want to achieve for the population in that area?” If,
through your monitoring, you find that the services you have available
are not achieving those outcomes for the child, you have actually a
very helpful circular loop. If you are involving parents in defining
those needs at a strategic help and you are involving those parents in
monitoring and holding local service providers to account, you have a
very neat
system.

Such
structures exist. Parent carer forums at that strategic level are
contributors to how you shape those services. They are there. The
Government have been fabulously supportive of helping to develop, shape
and drive them forward, so let us use the resources that are out there
and make the most of the opportunity we have through the
legislation.

Q
108Bill
Esterson: The only question that comes out of that is: if
the services are not there and you discover that in your feedback loop,
how do you discover that quickly and put them
in?

Matthew
Dodd: It is worth looking at clauses 25 to 30. It is
supposed to go back into the review, basically. You review, you draw up
the commission, you provide the services, then you provide the
information, and then that feeds back into the review, where you have
to say whether it is sufficient. There is probably not enough
accountability built in at this moment to know what happens if services
are not sufficient, but the Bill is clear that that consideration
should be given. What does sufficient look like? How is it judged? How
are you held to account if provision is not sufficient? What should you
do, if you found that it is not sufficient? That probably needs more
work, but the idea is
there.

Srabani
Sen: It is very clear that we are in a period of
fiscal constraint. We are not sitting here with Utopian glasses on,
thinking that absolutely everything should be provided for everybody.
It is really clear that you will need to prioritise in an area what
services you provide, but as long as that prioritisation is based on a
proper, thorough analysis of local need and you have involved young
people and parents in shaping it, that is a great outcome, even if it
means that you do not get absolutely every service you would like in an
ideal
world.

Q
109Mrs
Hodgson: Should the Bill include time scales for local
authorities to respond to requests by parents for an assessment of
education, health and care plans? What role should educational
psychologists have in this new
process?

Matthew
Dodd: The Government committed right at the beginning
of this process to maintain all the current entitlements relating to
statements of special educational needs; the regulations are fairly
prescriptive about how that should take place and ed psychs have a
clear role in that. Our position is that we do not think that there
should be any roll-back on current entitlements, so anything that was
there for statements should be built on and not
diluted.

Q
110Mrs
Hodgson: Is that the same for
you?

Christine
LenehanandSrabani Sen:
Yes.

Q
111Mr
Timpson: Very briefly, do you think that SENCOs should be
qualified teachers?

Column number: 50

Srabani
Sen:
Yes.

Christine
Lenehan:
Yes.

Matthew
Dodd:
Yes.

Q
112Mr
Timpson: The other document we published today is the SEN
pathfinder programme report. I do not know whether you have had an
opportunity to familiarise yourself with it, but I encourage you to do
so. One of the areas that Christine touched on earlier was that the
Bill also has to help to create the framework for the culture change
needed on the ground—to recalibrate the way that professionals
work and their behaviour around each other, so it is much more
co-ordinated and parents are much more involved in the process from the
start. I accept that you may not have digested every element of this
report, but the suggestion is that there has been good progress, with
parents feeling that they are more involved and more valued as a
consequence. With your knowledge of the pathfinders, do you see them as
an important contribution to making that culture change? How do you see
them working over the next 12 to 18 months to spread change more
widely, beyond the current 31 local authorities where the pathfinders
operate?

The
Chair: Before you answer, I shall ask Craig to put his
question so you can answer at the same
time.

Q
113Craig
Whittaker (Calder Valley) (Con): Mine is very quick and
will take you back to adding disabled children to the Bill. Christine,
you said that this Bill was part of a process of culture change. While
I accept your points, particularly about those with disabilities but
without special educational needs, is there not a danger that by
putting disabled children into the same Bill, we will give them an
extra label that will disadvantage
them?

Srabani
Sen: The simple answer is no. Currently they are
labelled as disabled. “Label” is an awful word, but I
know what you
mean.

Q
114Craig
Whittaker: But we do not label them as having special
educational
needs.

Srabani
Sen: Exactly. Extending the scope of who the Bill
will cover is not about labelling a child differently, but extending
the benefits of the new system to a broader group of kids. That is what
we are
suggesting.

Christine
Lenehan: I am happy to answer the pathfinder
question. It has been really interesting working with the 31 local
authorities that have been pathfinders. Some of the most effective have
not necessarily been the ones with the most plans in place or the most
bits of paper, but those who from the outset concentrated on building
the climate and culture for the change to happen. That has been a real
learning process. As the pathfinders move forward, it will be essential
to ensure that those lessons come out much more clearly; otherwise
people will see pathfinders as working with small groups of children
and wondering how they scale that up. In general, where the pathfinders
have been successful is in looking at how to make the system change and
how to make the individuals at every point in the system understand
their
role.

Some
of that is the challenge of working with empowered parents; some is the
challenge of working with empowered young people; and some is about
being able to bring

Column number: 51

creativity into some systems that have struggled to be creative. We
still have far too many professionals who operate the way in they do
because they have always operated like that. I once worked with such a
health professional—though thinking of previous Health Ministers
it could happen anywhere. Professionals have happily said to me that
their job would be so much easier if parents and families did not get
in the way of it. There is something for us if pathfinders can turn
that culture on its head, rather than people at this stage worrying
about what the paperwork for a plan looks
like.

Matthew
Dodd: Can I pick up the point about disabled children
and labelling them SEN and disabled? What we are saying is include them
in the scope of the Bill in relation to the joint planning and
commissioning duties, rather than on an individual level, so that
social care services, who recognise disabled children, not children
with SEN, know that they are part of that system. That is what we are
getting at, rather than asking at individual level who has SEN and who
has a disability. It is about making sure that all the services that
work across both those groups—there is a huge
crossover—know that we are talking about all the children, not
just the educational needs
side.

The
Chair: Thank you very much, all three of you, for
contributing to our deliberations. We now move on to the next panel,
because time is
pressing.

2.46
pm

Q
115The
Chair: Good afternoon, and thank you for coming along.
Could you briefly introduce yourselves?

Jane
McConnell: Jane McConnell, chief executive of the
charity Independent Parental Special Education Advice, a barrister by
training and parent of a child who happens to have complex special
education needs.

Brian
Lamb: Brian Lamb, chair of Achievement for All, which
is a charity founded as a result of my inquiry into SEN and parental
confidence that now works across 1,500 schools.

Professor
Dockrell: Julie Dockrell, professor of psychology and
special needs at the Institute of Education. I am also qualified as a
clinical and educational psychologist, and I recently led on the
embedded communication research programme, which was recently
published.

Q
116Mrs
Hodgson: Good afternoon. I have specific questions for
each of you, so I will direct each question rather than you answering
each one, unless you want to add something to a question even though it
was not directed to you. I will start with Brian Lamb. Do you think
that the Bill will increase parental confidence—you did the Lamb
review on parental confidence, so I thought that there would be nobody
better to answer this question—in the SEN system? What more
might be needed properly to achieve that goal?

Brian
Lamb: Gosh, I am not sure I have got a crystal ball,
but I will try to answer that question. If we look back at some of the
key things that we know help to improve parental confidence, the first
is the involvement

Column number: 52

of parents in the education of their child and in the strategic
framework in which that occurs. In doing the inquiry, nobody would be
surprised to hear that I think it is really good to have parents
involved, but people often do not realise the reasons why. In a
nutshell, apart from the moral good that we might all think that is,
essentially the more you involve parents both at the school level in
the education of their children with SEN, and at the strategic level,
the better the outcomes you get for children, the better the attainment
you get and the more confidence you get in services if they are
transparent and clear, so I would really welcome the concept of the
local offer.

I very much
welcome what the Government have painted as a picture around that,
rather than the language that is currently in the Bill. I think it is
absolutely crucial that in the code of practice, we see that fuller
vision that Ministers have talked about of an offer where parents can
get involved in the conversations about what that offer looks like and
in reviewing whether that is being delivered to them and its outcomes.
If we can reset the conversation with parents and get that cultural
change in the system so parents are really being consulted, that really
helps.

Secondly,
what we need—this is underplayed a little bit still in the
Bill—is what happens in schools, because schools are now
absolutely fundamental to driving this whole process. In the Green
Paper, “Support and aspiration”, there was a very full
concept of the school offer and schools being very clear to parents
about what they should provide in relation to SEN and SEN provision. I
have to say that I am slightly disappointed that the Bill simply
contains a repeat of the duty to explain what is there in terms of a
school’s Equality Act duties. I hope that when we come to the
code of practice, the Government will paint a richer picture of what
schools are expected to deliver for parents within that.

Lastly, the
Government are helping to fund the roll-out of Achievement for All.
Within that, we have the concept of the parental conversation, where
each parent gets an hour per term to work through issues with their
child with the teacher, and then we build on that and we build on that
focus. The more we can roll out Achievement for All, the greater
parental confidence will be.

Q
117Mrs
Hodgson: I have another question for Brian. How do we
ensure that children who are not covered by an education, health and
care plan achieve their best outcomes, with a view to closing the gap
between children with SEN and children who do not have
SEN?

Brian
Lamb: Fundamentally, the local offer is crucial for
that, which is why I wanted to see that richer vision of it and
especially what schools are required to do as part of it. When we come
to look at what is going to be called the single category—I am
talking about the move away from School Action and School Action
Plus—we have to be very careful. Whatever the problems with that
kind of division and categories—I do not think that we should be
relying particularly on categories, whether it is a single category or
two different categories—what we really need to be looking at,
within that concept of what happens within the school for those
children who do not have a plan, is a very clear focus on, first,
really good identification. If this child is falling behind and they
have an SEN definition because of that, what

Column number: 53

are the reasons why they are falling behind? Is it SEN or something
else? There also needs to be a real focus on equipping teachers so that
they have the skills to make more judgments about that, and then a real
focus on outcomes. Whether the child has SEN or not, they need to make
progress. That is point No.
1.

Point
No. 2 is that if the child does have SEN, we need to make sure that
there is a really good school offer, which is of course what
Achievement for All tries to do in terms of school leadership focusing
on children, the parental conversation, a real focus on Quality First
teaching and outcomes and a real focus on what we call wider outcomes,
which is preventing bullying and making sure that children with SEN are
fully involved in the life of their school and have the chance to
succeed. In a way, what we want to see mirrored in the guidance around
the single category is that focus on the whole school offer and then a
real focus on outcomes. Once you have identified that the child has
SEN, what does that child need to have to achieve those outcomes? That
may well be specialist support, and that needs to be triggered in. If
School Action Plus is not going to be there to trigger that support, we
are especially concerned to see that whatever the code of practice says
about this, there is a very clear steer to schools about what else they
need to trigger to make sure that that support is there, especially for
low-incidence groups. That is one of the problems in the current
system.

Q
118Mrs
Hodgson: My next question is to Jane from Independent
Parental Special Education Advice. I want us to look at this from a
parental point of view. Do you think that, in general, the Bill will do
what parents have been led to expect it will?

Jane
McConnell: Put simply, no, not at the moment. The
whole Bill was put to parents in the original Green Paper,
“Support and aspiration”, as bringing radical reform to
the system. We are introducing a new plan called an education, health
and care plan into the system to take over from statements. Looking at
the Bill and analysing it from a legal point of view, we still have at
the moment an education plan. It is very similar to a statement. Yes,
it is extending up to the age of 25. It is bringing academies and those
schools that come along with academies into the whole equation, but at
the moment it is still an education
plan.

I
know that this morning the Minister talked about duties on health. When
we get the details of that and we have looked at it, we may have an
education and health plan, but I suspect that at the moment, if this
Bill and this plan were put under the Trade Descriptions Act, for
instance, the Government would be liable to a successful prosecution
for calling it an education, health and care plan when it is not; it is
an education plan at the moment. Our call to the Government is to be
transparent about this. Is it a genuinely joined-up plan that goes
across all three aspects of a child’s life, or is it still an
education plan, very similar to the system that we have at the moment?
I think that until we address that properly, you will always have
issues with parents thinking that they are going to get one thing and
something different being delivered under the
Bill.

Q
119Mrs
Hodgson: Is the Bill as it stands assuming too much of
parents and their ability to participate in the process?

Column number: 54

Jane
McConnell: Yes. I think that we need a Bill that
works for children as opposed to parents. Yes, parents have a role to
play in this, but there are many children out there with special
educational needs and/or a disability who do not have parents who can
engage at this moment in the system, for whatever reason. We must not
forget, either, those children who are in care, a high percentage of
whom have special educational needs. The local authority is not only
the person who provides the education for them, but the person who is
their corporate parent. I am very keen to develop a Bill and a new
system that work for children independently of parents. Obviously, as a
parent, I would love to have a say about what happens for my child, and
the role of parent carer forums is important. However, that should not
be at the expense of children. First and foremost, we want to develop a
system that works for them without it having to be driven by
parents.

Q
120Mrs
Hodgson: I am sure people will want to explore further
what you have both said. I have one last question for Professor
Dockrell. You are from the Institute of Education, and early
intervention is key to addressing lots of SEN: the sooner it is
identified the better with regard to outcomes, specifically around
speech and literacy issues. Do you think that the Bill puts enough
emphasis on early intervention? What more might be done in this
regard?

Professor
Dockrell: I think the issue about early intervention
is that you have to have identified the children, in a sense, in the
way you might have done through School Action or School Action Plus or
in pre-school provision. The local offer is not specific enough unless
it actually articulates the factors that you would put in place so that
children will be picked up, and appropriate services are put in place
before they then go on to have further educational needs. We know that
children with language difficulties and precursors to literacy
difficulties will go on to struggle in the education system and not
make the attainments that you would hope they would
make.

Q
121Pat
Glass (North West Durham) (Lab): I think I need to declare
an interest. Brian and I worked together on the Lamb inquiry; I
provided the professional support from the
Department.

Brian,
under the local plan in the Bill at the moment, the responsibility to
monitor and to challenge rests with parents. What would you like to see
in the Bill that assists parents with both the monitoring and the
challenge
role?

Brian
Lamb: First, I noticed on Second Reading that the
Government talked about providing more of a framework to guide people
in terms of the local plan. I would hope that when looking at that
framework, and the way they kind of nudge local authorities towards
this, we start to see a much clearer sense—and it is there in
the Bill—of parents being able to monitor the level of provision
and also to be able to feed back against that. There is a fine line, as
I think we have already started to explore in this discussion, between
parents simply being responsible for policing the system and resting
all the responsibility on them to actually fix it—something I
was very critical of when I did my inquiry—and really good
participation on behalf of parents and young people. To take up
Jane’s point, this is not just about

Column number: 55

parents. Ensuring that they are involved enough in the planning stages
of services—as Srabani was talking about earlier in terms of
making sure that you capture the needs of the population—means
you have to worry less about the monitoring
downstream.

I
would like to see some very strong direction in terms of the
responsibility to involve parents early in the planning process, rather
than having to police the system at the other end. It is really
important to have a good back-stop, and when parents express
dissatisfaction with what is in the plan, or the fact that it has not
delivered, there needs to be some sense of obligation that the local
authority, or even the school, has to justify itself and what it is
doing. I would like to see some of that built in. However, since this
is about cultural change, I would much rather focus on how we get
parents and young people fully involved at the front end of this,
rather than picking up the pieces in the local offer further down the
line.

As
you know, when we did the inquiry we did a whole set of pilots that
were then evaluated by Warwick university. What was really interesting
was that all the evaluations said that it did not matter what the
actual content of the pilots was; what really made a fundamental
difference to parental confidence was the level at which they were
truly and properly involved by the local authority in planning the
services. I could quote many of the Government studies that come to
effectively the same conclusion.

Q
122Pat
Glass: Thank you. Jane, we heard last night—you
heard this morning—about the duty on health, which is very
welcome and we have all campaigned for it for a long time. However, in
my experience, most parents who are seeking often very expensive
residential placements for their children do so because of the lack of
social care and health support. Given this, would you be looking for
the Bill to contain an equally statutory duty on social care? What do
you think should be the role of the tribunal in
this?

Jane
McConnell: It is called an “education, health
and care plan”, so we would expect legal duties for individual
children in all three elements. The step for health care duties is
really welcome. I suspect it has taken a lot of work behind the scenes
from Government to get that. We need to recognise that and thank
everybody for it, but we still need to look at social care. I suspect
that that should not be such a big step, as social care and education
within a local authority are within one children’s services
team. To join them up in a more legalistic manner and make sure the
duty is there should not be as big as the challenge of bringing health
care to the table, which we had been told would not be
possible.

It is
essential to have equal duties on education, health and care, as the
three different elements in the plan. For me, it needs to have a single
entrance into the plan and ultimately a single redress. The SEND
tribunal as it now stands has the expertise within it, I am told by
them, to hear across all three elements: education, health and care. It
seems the ideal specialist tribunal. It is very used to dealing with
parents who have children with special educational needs and/or a
disability. It deals with disability discrimination claims at the
moment. It has experience within the chamber where it works to hear on
health as well as social care issues. That seems an obvious place for
me and everybody to go to if we need to challenge part of the
plan.

Column number: 56

The issue we
have with different routes of challenge for different parts of the plan
is that you are relying on parents to go to the SEND tribunal for
education, perhaps the Government ombudsman for social care, and a
different health complaints body for a different element of the plan.
That just does not make sense if we are going to have a single
assessment, a single plan that is singly enforceable and challengeable
somewhere.

Q
123Bill
Esterson: Coming back to what Jane and Brian have been
saying about concerns about the local offer and the changes away from
School Action Plus, what would you like to see added to deal with the
access to services outside
school?

Brian
Lamb: Outside school? In terms of what is potentially
changing in the movement away from School Action and School Action
Plus, we first have to understand that there has already been a
significant change in the way that school funding is currently being
delegated to schools and the expectations around that. As a result of
funding changes that came in in September last year, we already have a
system where, once you have had the pupil allocation roughly around
£4,000, varying a bit in different authorities, the next
£6,000 is essentially the responsibility of the school. To some
extent, where before something was triggered by School Action that had
to be looked at outside the school, that is where it has gone to some
extent in terms of the way that schools are operating now.

The real
issue at the moment is schools beginning to understand their
obligations now, that they have to deliver whole-school offer for most
of their children in their classrooms. They will, as your question
implies, more and more have to look not just at how they commission
across the specialist support they need within the school just around
the classic areas of SEN, but classically where does speech therapy and
language support come from? Where do you get the other health bits
coming in in relation to this? At the moment we need some stronger
guidance when we see the code of practice about schools’
responsibility to start looking at how they start to knit together
across a school offer with health, especially in terms of some of that
equipment
provision.

I
welcome the fact that the Government accepted one of my recommendations
to introduce—by the previous Government and then implemented by
this one—requirements to provide auxiliary aids by schools. Now
there is an individual right for children to have an auxiliary aid.
Although that is essentially around education I think we also need to
look at when the auxiliary aid is a speech therapist, where that comes
in, and give clear guidance to schools about how they work that system,
to ensure they make the right assessment so that children get the right
support to achieve. That has to go wider than education.

Jane
McConnell: For me, it comes back to the local offer.
Coming from the Green Paper, it was originally going to be a document
that set out what each local authority would expect their schools to be
spending their designated school grant on and what provision they would
put into place for those children who were on what we would now call
School Action and School Action Plus. In their particular area, we
would expect, for instance, five hours of one-on-one support to
be

Column number: 57

provided from designated school grant, or two visits from a speech and
language therapist or one visit from behavioural support.

The
idea was that it was a very clear statement of what a school would be
expected to present for a child at School Action and School Action
Plus. I am concerned that, first of all, at the moment we do not have
much information from the pathfinders about what they are doing. Of
what we have seen, the local offers have been very nice directories of
information, which can be really helpful for parents, but they have
failed completely to detail the expectation to schools in the area of
what they should be doing with their money in that particular area. For
us, ultimately, that local offer should be legally enforceable. It
would therefore be useful for a tribunal to know what would happen in
that particular school when it is presented with a case where the local
authority says, “No, the child’s needs can be met in the
school,” and the parents are saying, “No, they
can’t be,” or if the school are not able to provide them
at that time.

If
a local authority was producing a clear, specific local offer that said
what they expected to happen at School Action and School Action Plus
stages with the money that schools get given to them, there would be a
real shift in the process.

Q
124Bill
Esterson: Is that similar to the point that has been put
to me about schools in my borough, where the money goes into the budget
at the start of the year, but if there are changes in need or if
children transfer, as happens a lot with SEN children in particular,
there is a big impact, particularly on smaller schools?

Jane
McConnell: There is a real problem with the funding
of SEN that the new system will not necessarily address
positively—certainly not in the beginning—where the
amount that a school is designated through the designated schools grant
and the funding formula does not bear any relation to the number of
children on the school roll with special educational needs or the
complexity of those needs. That is always a mismatch: for instance, if
you have a small, rural school that is in a quite affluent area, it
will not tick any of the indexes of deprivation on which the funding
formula is mainly based. Therefore, they will not trigger much funding
under the DSG element even though they may happen to have three or four
children in their school population who have complex SEN at that
moment. There is always also the issue of pupils
transferring, although under the new system it should be that SEN
funding transfers much more quickly than it has done up to this
point.

Brian
Lamb: There is the opportunity, once you get beyond
the £6,000, to trigger support from the high needs funding pot
from the local authority. But that is what I was saying earlier: we
really want to see a slightly richer version of the schools offer,
because it would start to address some of the points that Jane has been
making if there was a clearer sense of what the schools had to provide
as part of that offer in the first
place.

Jane
McConnell: But ultimately, the legal duty stays with
the local authority to make the right provision for a child; if the
right provision cannot be made via the child’s designated school
grant, it is for the local authority to step in and that may
be through statutory assessment.

Column number: 58

Q
125Bill
Esterson: You both mentioned the role of the local
authority. What about the impact of the growing number of academies and
free
schools?

Jane
McConnell: It is huge, and it is creating more and
more problems within local authorities as more and more schools become
academies, because that funding is going directly to the academies and
it is not coming via the local authority. Up until now, there has been
double funding by the Department for Education—they have been
funding local authorities at the same level even though schools have
been transferring to be academies—but this financial year, along
with the new funding changes, it will be the first time that the money
comes away from the local authorities and I think that many of them do
not understand how little money they will get, and how that amount will
decrease more and more as schools become academies.

That also has
to be seen in the context of financial cuts because of the austerity
measures that are going through in local authorities. IPSEA are usually
the last people to make a plea on behalf of local authorities, but I
really have to say that, in this respect, our sympathies are with local
authorities; some of them are on their knees and begging for
mercy.

Q
126Bill
Esterson: Have you got any particular recommendations for
changes to strengthen the
legislation?

Jane
McConnell: On the local
offer?

Bill
Esterson:
Yes.

Jane
McConnell: Yes. We have drafted some amendments that
we would look for you to
adopt.

Brian
Lamb: For me, it would be going back to the concept
that was outlined in “Support and aspiration” of schools
having more than just a duty in relation to their equality duties as
part of the local offer, but also having a duty to say exactly how they
are going to deliver the SEN curriculum in their school and to have
shown how they consulted parents around that. That might be what the
Government are intending to be more specific about in relation to the
code of practice, but it would get over your point about whether a
school is an academy or not. The duty for that bit of the offer is then
on the school itself. That is why I think it would be really important.
It allows parents at the school level to have that conversation with
the school about what is being offered and to be held more to account
for the offer at that
level.

Q
127Pat
Glass: Jane, I probably should know this, but on the issue
of academies, could you clarify what you just said? If the academy
cannot provide, the duty as it is at the moment rests with the local
authority?

Jane
McConnell: Ultimately, their duty is to identify
children with special educational needs. At the moment, it is not only
identifying the children who have special educational needs, but the
children who may or probably would need a statement. One of the issues
with the new Bill is that that additional duty to identify children who
may or probably may need a plan is not in there. At the moment, we have
the general duty to identify the children who have special educational
needs, for whom they are responsible, but the new Bill does not go that
extra step and have a proactive duty on local authorities to identify
the children who will probably need a plan. For us, that

Column number: 59

is one of the things that goes back to the whole idea that we still have
not quite yet got to the stage where existing duties are reflected in
the new
Bill.

Q
128Steve
Reed: Are we in a position to move ahead with personal
budgets for education provision, given delays to the
pilots?

Jane
McConnell: No. We have real issues about the fact
that we have not managed to get much detail out of the pathfinder
pilots about what is actually going on. A couple of parents have come
to us with issues around personal budgets. One recently went into the
tribunal. There are issues not only about how parents will use personal
budgets and what will go on, but about funding the personal budgets and
the provision. The issue for us is whether the local authority duty to
make special education provision is met when the money is paid to the
parent, or when the service is delivered.

The issue
that came up in Gateshead—one of the smaller
pathfinders—is that the parent and the local authority very
successfully decided that they would go for a direct payment route for
a particular provision, and they got as far as deciding exactly what
the details were, but when it came down to the money, the money was
about £20,000 short for the parent. The parent felt that they
needed £45,000, for instance, and the local authority was
offering them £20,000 less than that.

Because it
was a pathfinder, the whole issue went to the tribunal. It looked at
the detail in part 3 of the child’s statement and actually put
some more specification in, because the evidence was there that the
child needed a certain type of specialist teacher and learning support
assistant, which meant that the local authority then had to pay the
additional £20,000. We think that that type of issue will become
quite a regular one with personal budgets. We would like to see more
evidence from the pathfinders on personal budgets, so that we can look
to address those issues positively. For us, the key question at the
moment is: when is the duty of the local authority discharged? Is it
when the money is paid to the parent or when the service is delivered
to the
child?

Q
129Steve
Reed: Are you looking for changes in the provisions of the
Bill to deal with that?

Jane
McConnell: At the moment, the issue is that the Bill
does not go into that level of detail. We have been told that the
pathfinder pilots will provide the evidence, and it will come in
regulations and a code. As the Bill is at the moment, we are looking
for a couple of amendments, but it is about the detail. Until we get
the evidence, we cannot work out the
detail.

Q
130Steve
Reed: A final point, if I may. London Councils, a
cross-party organisation, has expressed concern that free schools are
able to avoid taking their fair share of students with challenging
needs. Is that a concern that you
share?

Jane
McConnell: Certainly at the moment we share that
concern. One of the things that we are particularly concerned about in
the Bill is the clause that says that free schools and academies will
be able to take pupils not having had an assessment and therefore not
having had a plan to go on to roll permanently. That is obviously not
the case for maintained special schools; children have to have had a
statutory assessment of need and

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have to have a plan or statement in place in order to access them.
However, the proposal is that if it is written into the funding of the
special academy or the special free school, that can happen under the
new Bill. For us, that is a huge alarm bell. We are told that some
parent groups want this because they want to set up their own free
schools. If you are looking particularly at children who have, for
example, a dyslexic profile or a high-functioning Asperger’s
profile, they will not need the level of provision that you would
normally have funded above
£10,000.

I
completely see why they may want to do that, but this should be
legislation that works for children. Our opposite concern is this: we
have groups of academies looking to set up special free schools as part
of their academy chain, and our fear is that if there is no regulation
on whether children need to be assessed before they go to those
schools, and if there is no clear path and provision that must be put
in place for those children, we will end up with dumping grounds for
children, where they are manoeuvred into schools where their needs are
not being assessed and met. That is a real
problem.

Q
131Steve
Reed: Do other panel members agree with that view? It
sounds very serious to
me.

Brian
Lamb: From Achievement for All’s point of
view, we would not get involved in those kind of issues in the same
way, so we would not have the experience to comment either
way.

In
terms of the question on direct payments, our starting point would be
that when we are working in schools, we need to know that there is a
consistency of approach and a consistency of support. We are putting in
the framework to support the whole school and the real focus on SEN and
outcomes, so we need to know that specialist interventions are
available, that they are there and flexible, and that the right kind of
support is being delivered to the right child. We just haven’t
seen our personal budgets come through enough yet in terms of having
enough examples to know whether they are being able to secure that or
not. In principle, if parents want that and you could deliver that
consistency of support, Achievement for All’s view would be that
we would work with what the parents and the school wanted to do. But
there has to be that sense of
consistency.

In
terms of your second question about free schools, I am just not in a
position to answer
that.

Professor
Dockrell: I think that’s true, but I think
that one of the important things is conceptualising what this local
offer might look like. Within the school you would have a graduated
approach to supporting children’s learning needs. We have been
talking a little bit as if special educational needs are within the
child and stay within the child throughout their life, but their needs
will change. They may move in and out in terms of the demands that the
curriculum is placing on them. For example, in terms of speech,
language and communication needs, we know that there is a decline over
time in language needs that changes to literacy needs. So within the
schools you need flexibility about the way that the curriculum is
offered. We have talked about “quality first”
teaching—we must then look at more targeted and specialist
support, and schools ought to be equipped to do that within the local
offer.

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Q
132Jessica
Lee (Erewash) (Con): Thank you all for coming. I have been
reflecting on the fact that you all have great expertise and are coming
from different angles. With that in mind, I wondered which single
aspect of the Bill each of you welcomed the most—which bit stood
out to
you?

Jane
McConnell: For us, it is definitely the extension to
25. To have one system that goes from birth to 25 has to be applauded.
It is huge. The learning disability assessment process when children
plop out of school-based education and go into college education is a
nightmare. It is absolutely a pit for parents, children and young
people. So the extension to 25 is massively
welcomed.

Brian
Lamb: If it can be made to work properly and there is
this richer version, I think it would be the local offer—if we
can invest that with a really genuine and culture-changing approach
towards parents and with more focus on schools in the way I have talked
about.

I
would also like to welcome the fact that the Government have agreed to
pilot children being able to take legal cases in their own right. That
goes back to what Jane was saying: there are many children in the
system who are disadvantaged, where there is a corporate parent, and
where we need to have a more independent way in which children’s
rights can be advanced. It is not the biggest thing in the Bill by a
long way, but it sets an important precedent in terms of how we think
about children’s rights and people’s responsibilities to
them within the Bill, so that is also very
welcome.

Professor
Dockrell: I would say the links between education,
health and potentially social care, if they can be operationalised. For
a long time, a link between education and health has been put forward
as a very positive thing, but we know that for a wide range of reasons,
that has not happened. If we can address those barriers, that would be
really positive.

Q
133Mr
Timpson: May I take you back to the discussion you had
around the SEN school-based category? Brian, I know that your inquiry
in 2009 found that SEN can sometimes be unhelpfully correlated with
falling behind. One of the statistics that you came across was that
“At the end of Key Stage 2, August-born pupils are 60% more
likely to be identified as having SEN than September-born
pupils”, which is quite a stark statistic. Do you feel that the
current two-category school-based system is the right one? If not, do
you think that moving to a single category, and the greater emphasis on
early identification and more rounded responsibility within the school
across all teachers for raising the quality of provision within the
school for children with identified special educational needs, is the
way forward?

Brian
Lamb: What is crucial in all of this, as I said
earlier, is that categories are not the real issue. It goes back to
what Professor Dockrell was just saying. I think that what we really
need out of the system, whether it uses school-based categories or
whatever, is, for precisely the reasons that I identified, really good
“quality first” teaching and assessment to look at the
reasons why children fall behind. I have no particular problem with the
definition—it is the least worst one we have got, and I think we
ought to stick with it—but we therefore need very skilled
teachers delivering “quality first” teaching and
assessing why children are falling behind, so that we can then address
the needs of those children with SEN.

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One of the
known failings of the system—I am not sure whether it has much
to do with whether we divide children between School Action and School
Action Plus or something else—is simply that as children start
to fall behind, there is far too much willingness simply to say,
“Oh well, this must be an SEN. We’ll put children in the
SEN category.” Then you start the whole process of putting them
on the table with the teaching assistants, velcroing the TAs to the
children and not getting the most experienced people in the
classroom—the teachers—teaching those with the most
needs.

Achievement
for All was based on reversing that decision and making sure that
“quality first” teaching was in place. Exactly as Julie
was saying, if you have “quality first” teaching in
place, the children may have SEN, but they start to perform at an
age-appropriate level, and we do not need the category so much. What I
really want to see out of this is, if it is to be a school-based
category, the crucial thing is that the guidance focuses teachers on
the right things. That has got to be “quality first”
teaching with the right assessment and then the right intervention when
children have got SEN. That is the crucial point, rather than killing
ourselves over one set of categories or guidance or another.

You could do
all that while keeping the categories, and you could do it without. The
fundamental point is what you actually publish when you come out with
the code of practice, and whether the guidance for teachers and schools
around that is adequate to achieve that without placing children back
into other categories. Certainly, on Achievement for All, by having the
focus in that way, we have massively increased the outcomes for
children with SEN such that in the pilot study, 37% of children in
relation to expected progress in English and 42% in maths were
achieving at or better than the national expected progress for all
children nationally.

That is the
situation that we have got to get to. By all means, let us discuss the
guidance for how to get those outcomes rather than what categories we
use. That is the fundamental point, but important within that is how we
trigger that additional support. I do not think that anyone should
conclude that we do not need to trigger it. We do, and the process
needs to be in place to do so, and the confidence needs to be there
that the additional support will be there, however it
is
delivered.

Q
134Mr Timpson: One of the
elements that has come out of the pathfinders relates to the role of
key workers. I imagine that you have not had an opportunity to see the
report that has come out today, because you have probably had your
minds on other things. You probably do not need encouragement to read
it; I am sure that you have read all the other ones with great
excitement. Although key workers, or navigators or assessment
co-ordinators—they come with different names—may not be
required in every single case, it is clear from the pathfinders that
many parents who have had the opportunity to work with them at specific
points, in particular at the assessment phase and also during
transitional periods, have found them to provide an extremely helpful
and comforting level of support, which helps bind together all the
elements of support and makes it much clearer to them what they
are

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entitled to and how they access that support. This is for everybody on
the panel. Would you care to say anything about the role of key workers
and how you think they should form part of the reforms going
forward?

The
Chair: Before you answer that question, I am going back to
Sharon to ask a question because we will run out of
time.

Q
135Mrs
Hodgson: This question is specifically for Professor
Dockrell, because she has come along in a specific capacity, as an
educator and trainer of teachers. It is around teacher training and
with regard to work force development, initial teacher training and
continuous professional development. Should we be addressing that more
in the Bill? Have we missed an opportunity? It is the skills of the
work force that help to identify the high incidence needs. I am talking
about those children who will not get an education, health and care
plan.

Jane
McConnell: If I answer the question about key
workers, yes. The evidence from the Lamb inquiry, which I was involved
in as one of Brian’s professional advisers, was very clear: key
workers play a fundamental role in parental confidence and in
understanding the system. What is needed, though, if those key workers
are to be generally good and progressive, is training—training
in the system and in the actual law that underpins the system, not just
in the local authority policy or its interpretation of the
law.

At the
moment, local authority officers are not given access to good SEN legal
training. It does not have to be long and arduous, but they need to
know that what they are talking about is the legal position because
that is ultimately what they face if they go into tribunal, as opposed
to what the local authority policy is. That for me is the caveat. Key
workers are great, but they need to be trained to do the job properly;
otherwise we end up with misunderstanding, upset and then mistrust in
the key worker if they say, “We don’t do statements in
blah, blah, blah,” and the law says that they do do such
statements. There are no principalities among local authorities as far
as I understand it at the
moment.

Professor
Dockrell: I think the training of teachers is
absolutely essential. We need to get “quality first”
teaching right. If the teachers are not aware of the dimensions that
are appropriate to developmental phases, it will not happen. There is
insufficient inclusion in initial teacher training of the diversity of
learners. Children differ, and they differ at different ages. It is not
just the special needs category that you have to work with, so there is
a role there. There is a role in CPD within schools, so working with
staff and providing staff with evidence-based tools to help them
develop their own teaching in those settings as well as external to
that. It was one of the major recommendations of the ECRP—early
childhood, research and practice—study as
well.

Mrs
Hodgson: And it is not on the face of the Bill. There is
nothing about that.

The
Chair: That brings us to the end of our time. We must go
on to the next group of witnesses. Thank you very much for your help
this
afternoon.

Column number: 64

Examination of
Witnesses

Jane
Friswell, Wendy Lee and Kate Fallon gave
evidence.

3.30
pm

Q
136The
Chair: Good afternoon. Thank you for coming along. May we
have brief introductions, please, so people know who you
are?

Jane
Friswell: My name is Jane Friswell. I operate in a
lead consultancy role for SEND at NASEN, the National Association for
Special Educational
Needs.

Kate
Fallon: I am Kate Fallon. I am the general secretary
of the Association of Educational Psychologists. In my time, I have
been an educational psychologist in a local authority and managed SEN
services.

Wendy
Lee: I am Wendy Lee. I am professional director for
the Communication Trust. We are a consortium organisation of 47
members. My background is as a speech and language
therapist.

Q
137Mrs
Hodgson: I will start with Wendy, if I may, from the
Communication Trust. Speech and language delay is often one of the most
under-identified SEN—I think we would all agree about that. Do
you think that the duty in the Bill to identify children with SEN is
strong
enough?

Kate
Fallon: We have concerns about the
under-identification of children with speech, language and
communication needs, in particular in terms of the local offer. We
really want to ensure that that is tight enough and that local
authorities have got that responsibility really to know how many
children they should have with speech, language and communication needs
and to have a really tight, robust system in place so that they can
identify those children and be accountable for whether they slip
through the net. That really passes through to the school-based offer
as well, in terms of identification at school level. We have quite
significant concerns about the identification of children with speech,
language and communication needs. It is under-identified because it is
not understood very well, in terms of high incidence, low support needs
and the converse. For example, children with specific language
impairments might present themselves as having reading or even
behavioural difficulties, and it is the surface element that is
identified but not what sits underneath that, which is quite often a
speech and language
difficulty.

Q
138Mrs
Hodgson: As you know, in our young offenders institutions
and unfortunately then in prisons, we find a very large number of young
people and young adults who have speech, language and communication
needs. Do you think that it is helpful, or the right thing, that the
support plan is going to cease when a young person enters the criminal
justice system? Do you have any ideas of how that support could
continue or be picked up
again?

Wendy
Lee: It is not helpful at all, because obviously
those young people will have communication needs. If the support ceases
when they go into that system, they will therefore not be able to
access some of the remediation or rehabilitation that they might have
otherwise received, so it is contra-indicatory. They really need to
have the right support while they are in that system, so that they do
not reoffend. To stop such support is a bit confusing,

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because it seems to be really important for those youngsters. We know
that between 60% and 90% of those in the youth justice system have
speech and language difficulties, many of which have not been
identified at all or until they get into that support system, so it
seems really important that the support carries
on.

Q
139Mrs
Hodgson: Is there a way that could work? From
conversations with the Minister, I understand that such support comes
under the Ministry of Justice once a child enters the criminal justice
system. It is supposed to pick that up. Is there a way for that to
happen, or would the Department for Education have to take control of
the education of such
youngsters?

Wendy
Lee: If they have an education, health and care plan,
it would seem to make the most sense for that system to remain; if
youngsters have got needs across education, health and care, it would
seem right for that system of support to continue through into the
youth justice system, or for education to have responsibility for their
continued education. Once those young people get into the youth justice
system, and if for example they need speech and language therapy, it
makes sense for their therapy to continue through in that system. For
me, the plan should stay as it is and be carried by the system that is
already in
place.

Q
140Mrs
Hodgson: What happens at the moment when a young person
enters the youth justice system and when they come back out? If they
had a statement or not, what happens at the moment? We want the new
system to be better than what we have got; obviously we do not want it
to be
worse.

Wendy
Lee: I think it sits under education at the moment.
As I said, it seems to make sense that they carry a young
person’s education, health and care plan, because therefore
their needs will be met in the same way outside the system as they are
within it.

Q
141Mrs
Hodgson: I have a question for Kate. Why do you feel that
the Government need to prescribe centrally the specialist professionals
who contribute to future statutory assessments? I read that in your
evidence.

Kate
Fallon: What we are concerned about is that it is
still going to be a relatively small group of children with complex
needs who are likely to have education, health and care plans. What we
are concerned about is that those children get the best deal and the
best specialist advice and assessment over time. Education, health and
care plans are not just about getting provision, but about providing a
formative plan for the day-to-day care, support and education for the
child. We want to ensure that they get the best possible specialist
advice.

Children
with special educational needs who currently have a statement might
move house. If there is central prescription, parents will know who is
going to be involved in their assessment regardless of where they live,
and that is important. That means that reports are transportable, if
people move from one geographical area to
another.

Q
142Mrs
Hodgson: We know that pathfinders have been extended.
There is a report today that the Minister mentioned; I have not had
time to read it yet, but I am

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sure I will read it over night. What has your impression been of the
progress made by the pathfinders, specifically with regard to the role
of educational psychologists?

Kate
Fallon: Unfortunately, I have not read this
morning’s report—sorry about that—although I have
had conversations with about half of the pathfinder projects, sometimes
with the educational psychologists involved, and sometimes with other
staff, who are non-educational psychologists.

What
is challenging for all of them is carrying out assessments in different
ways. My impression is that some of the projects are doing really well
in conducting multi-professional assessments and meetings that involve
parents, so that right at the beginning, everyone is involved in saying
what their aspirations are for the children. It still allows for
individual specialist professionals to do some assessments, but then
they all come back together with the parents to determine,
“Okay, now we have got all this information. What should be in
the plan?” It seems that very good progress is being made in a
number of
them.

I
am led to understand that, in all the education, health and care plans
for children and young people that have been made, there has been
educational psychologist involvement, even if it was for children who
already had a statement. I believe that educational psychologists have
played a role in the new plans that are coming through and have been
found to play a supportive role because of the way they work generally,
which is about gathering information from different sources, looking at
different factors and trying to synthesise them into a day-to-day plan
for the future. That is my impression. Progress is taking its time in
places, but the right things are being done to help with the plans for
children in the
future.

Q
143Mrs
Hodgson:Thank you,
Kate.

Jane,
what do you think the role should be for a SENCO in a school? Does the
Bill give them enough clout with regard to driving improvements to
provision? Should they continue to require the national
award?

Jane
Friswell: I often refer to the role of SENCOs as
almost requiring some kind of additional appliance that they wear on
their shoulders. As the academic year progresses, their shoulders often
need to become much broader, as the demands on that particular role in
schools
grow.

The
Bill has quite rightly identified the key role of SENCOs, but what I
feel it lacks is clarity on the qualified teacher status required for
that role. It also seems to lack clarity regarding the nature of the
qualification. We know how successful the NASENCO award has been in
improving the overall quality of SENCOs across England in our schools.
That certainly follows along with the evidence that shows a decrease in
the number of children identified on SEN registers in schools. There is
a direct relationship between
those.

We
have also seen the impact that the NASENCO award has had on the
development of the quality of whole-school provision. NASEN’s
approach is that we would want all schools to have high quality
whole-school approaches to meeting the needs of all pupils;
consequently, the demands on SENCOs are going to
grow.

Column number: 67

Within
the role, we also need to reflect that we are educating 21st-century
children, and consequently we need to reflect the diverse range of
needs that children have, and the mix of need that there is. When we
look at data describing the needs of children, quite often we are
describing only the primary area of need. Often, there are many more
areas or aspects of need for children. That suggests that we need a
very diverse and sensitive approach to how we design the range of
support on offer, which the SENCO ultimately manages and co-ordinates
in
school.

Q
144Mrs
Hodgson: Do you think the SENCO needs to be a member of
the senior management team or that it would be helpful if they
were?

Jane
Friswell: Absolutely. Without question, and that is
something that NASEN has championed for many years now. We are coming
to the end of a two-year project, funded by the Department, that is
specifically geared to getting schools to design and bring forward a
whole-school approach to access, participation and achievement, which
has been wholly successful. We have now met and trained over 6,000
SENCOs across England. The quality of the training that has been
delivered has been superb, and has met with great acclaim from the
SENCOs who we have delivered to. It is really quite worrying that a
significant proportion of SENCOs who attended the training are not
members of the senior leadership team, or SLT. That is particularly
worrying within the primary sector where, in addition to being a SENCO,
often that person has a huge amount of responsibility at class teacher
level as well as additional curriculum co-ordination responsibilities.
At secondary level there is a slightly more business-like approach;
however, there seems to be more of a SLT requirement for a SENCO role,
although that is not necessarily the case for all SENCOs. So,
absolutely; we would urge the Department to look very closely at the
SLT requirements for the role.

Q
145Mrs
Hodgson: A very quick follow up: is there a correlation
between the outcomes for children who have special educational needs
and whether or not the SENCO is a member of the senior leadership
team?

Jane
Friswell: That is a very interesting question. Yes,
initially; the initial evidence seems to suggest that. What is also
interesting is that SENCOs who go on to acquire the NASENCO award are
often taking a leadership route in terms of their career pathway, which
at this early stage—to date, four years of cohorts of SENCOs
have gone through the national award—seems to suggest that we
are preparing our future school leaders. They are acquiring the NASENCO
award earlier on in their careers, which can only be a good thing in
terms of future school leadership and the management of our
schools.

Q
146Andrea
Leadsom (South Northamptonshire) (Con): May I ask the
panel about the very youngest children? Do you think the Bill deals
with the needs of babies and infants, who may develop or be born with a
disability that obviously predates the ability to put a statement
together? Does the Bill deal with the protection of those
children’s needs, or should it do more?

Jane
Friswell: I am happy to respond to that, having been
an early educationist in a previous life. When a baby is first
diagnosed with a diagnosis such as Down’s

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syndrome, the immediate concern has to be for the child and their
family. The question of where the child is likely to go to school is
not necessarily top of the priority list, although it may be for some
parents. Co-ordinated multi-agency family support is particularly
critical at that time, certainly for those children under the age of
two: services at a local level throughout England seem to be
decreasing, and consequently we often see families who are almost
adrift at that very critical time in their child’s life, when
they need help and information, but do not want to be overwhelmed with
information. It is particularly important to support the process of
coming to terms with what their particular child’s needs and
diagnosis may mean for them as a family.

Kate
Fallon: I do not know whether it needs to be
prescribed in the Bill. It would have been helpful if we could have had
the regs and the code of practice before we came into this session,
because currently the way of supporting very young children in their
early years is outlined and described quite well in the code of
practice and the regulations. If we are going to see regulations and a
code of practice that outline methods of working together that are
similar to what we have done in the past, I am not sure they need to be
absolutely prescribed in the Bill.

One of my
concerns is that we need to make sure that we maintain the strategic
commissioning of specialist professionals to be available within
communities, so that specialist professionals are immediately available
to support the families of young children whose needs are identified
very early. I am speaking specifically about education psychologists,
who often work with very young children and help with the interface
between the health diagnosis and, later, the entry into nurseries or
early years settings. Either in the Bill, the regs or the code of
practice we should ensure that it is perhaps the local offer that
should identify the specialist professionals in order to make sure
those children and their families are supported.

Wendy
Lee: I guess from our point of view it is about the
importance of children’s language and communication in the very
early years. We have some concerns about non-maintained early years
settings—this links back to the early identification
piece—and how the local offer or the education, health and care
plan could ensure that children in those settings are identified early.
We know, for example, that SLCN is the most prevalent childhood
disability. We know that in areas of social deprivation, the number
rises massively to about 50% of children starting school with speech,
language and communication needs. If those children are in
non-maintained settings, how will the local offer ensure that they are
identified earlier? We know that the work force in the early years are
not confident about identifying children with communication
difficulties, and are not confident about supporting children with
language delay.

It is about
ensuring that we identify children at the very earliest point. We know
how to do that, and we know what works. If we are able to do that, it
will possibly in the longer term prevent children from needing a plan.
If children with high incidence and low support needs are identified
early in early years settings, it can make a big difference. That will
enable them to start school with the skills they need to access the
curriculum. That is our take on this.

Column number: 69

Q
147Pat
Glass: For the record, I should say that Kate and I have
worked together over many years in many places. Kate, we all recognise
the unique and valuable contribution that educational psychologists
make. Yet successive Governments—not just this Government, but
the previous one—have failed to identify the funding for the
training of educational psychologists. EPs are expensive, so local
authorities have sought to reduce their numbers in comparison to some
other groups. We have seen a real drop in numbers recently, which is
extremely worrying. What would you like to see, either on the face of
the Bill or in the statutory guidance, about the future funding and
training of EPs?

Kate
Fallon: First, I would like to see a prescription
that educational psychologists are still required. At the moment, local
authorities and central Government are contributing massively to the
training of educational psychologists. There is some central Government
funding, and clearly I would like to see that continue. Local
authorities also play a large role by supporting the
training—certainly in years 2 and 3—and including trainee
educational psychologists in their services. They actually provide a
supervised service. Local authorities either pay them a salary or
provide a bursary, so that each year we see a new cohort of educational
psychologists entering the profession, which is, of course, a small
profession.

One of my
concerns is that there is no prescription that will make local
authorities feel that they have to provide or commission educational
psychologists, and therefore there is no strategic commissioning
procedure for ensuring that educational psychologists continue to
exist. I want to see them enshrined in the statute or in the regs or in
the code of practice. I accept that as cuts to local authorities
continue, schools are able to afford fewer and fewer educational
psychologists. However, schools actually very often buy in
psychologists themselves to help support the whole range of special
needs, so with that advice and support many children do not go on to
need an education, health and care plan. Schools can continue to buy in
a service if that service still exists. It would be more difficult for
schools to buy in that support if there were no services available for
them to purchase it
from.

Q
148Pat
Glass: Do you think it is important to have the central
role
acknowledged?

Kate
Fallon: I would very much like to see
that.

Q
149Pat
Glass: Jane, I have worked with Lorraine Petersen over
many years, looking at the role of SENCOs. I know we were concerned,
first that SENCOs were not the head teacher, secondly that they were
qualified teachers, and thirdly that they were part of the leadership
team. Again, are you disappointed that that is not on the face of the
Bill?

Jane
Friswell: We are,
yes.

Q
150Pat
Glass: Does that need to be on the face of the Bill, or
could it be in the statutory guidance?

Jane
Friswell: I would certainly go for the
Bill.

Q
151Steve
Reed: Does the legislation need to define time scales for
local authorities to respond to requests for assessments?

Column number: 70

Kate
Fallon: Yes. Whether that is specifically in the
Bill, or in the regulations or the code of practice as it quite often
is now, I think it is very helpful to parents. It ensures that parents
feel confident about what is happening. I think having time limits
prescribed is very helpful to them, and it also ensures that teachers
know that they are going to get some additional support, and children
know what is happening for
them.

Q
152Steve
Reed: Do you welcome the proposals in the legislation for
personal
budgets?

Kate
Fallon: Is that to everybody, or just
me?

Steve
Reed: To you, and then
everyone.

Kate
Fallon: I think personal budgets have been shown to
be quite effective for the care of some children with disabilities in
the past, particularly in terms of helping them get child care or
support in the home setting. I am less sure of how personal budgets
would work in a school setting, because if parents were directly
purchasing support which was then going to operate in a context that is
within management structures, I can see that there would be some
tensions there about how best to deliver it. But I certainly think that
in some of the wrap-around services that support children with
disabilities in their care, personal budgets have been seen to work
very
well.

Jane
Friswell: I think that offering the option of a
personal budget to parents can only be a good thing. I think it would
be interesting to see what the outcomes are of the current pathfinder
work in this area, and certainly Kate is right in mentioning this
notion of potential tension for schools. I also think it is a
reasonable test of the strength of the engagement that schools have
with parents who may opt for a personal budget for the particular
nature of their child’s provision. At the moment it is unclear,
both on the Bill and also regarding not knowing what the regulations
are going to look like, so it is unclear for schools as to how that
will happen. How does the interface happen between parents and school
if they wish to purchase a particular type of provision from schools?
Will a brokerage responsibility be brought to bear on schools, whereby
parents could effectively shop around for different types of provision
from a range of schools? Will that have implications for schools
clustering together to develop new services? How does that relate and
influence, and what implications does that have for the development of
the local offer, for example? I think there are a number of questions
still unanswered that certainly are on the tips of every
school’s
tongue.

Q
153Steve
Reed: If there were to be a brokerage of the kind you
describe, would that fit best in the local authority or
elsewhere?

Jane
Friswell: I think it would sit better with the local
authority. There would need to be some clear guidance around how the
local authority interfaces with the schools. Given the changes to the
nature of provision—free schools and academies, for
example—there would certainly need to be much greater clarity
about how the local authority and academies and free schools engage
with each other on that brokerage
notion.

Wendy
Lee: I would agree on the principles around the
advantages and the challenges for children with speech, language and
communication needs. That includes

Column number: 71

a whole range of youngsters. I am not just talking about those with
specific needs, but children with disabilities who might have
communication needs as well. Often parents feel there is a lack of
speech and language therapy support. Again, if a number of children in
one class all bought in therapists independently you could end up with
quite a fragmented offer for the individual children.

At a
school-based level we would want to see that graduated approach, with
the “quality first” teaching, with expertise around
supporting communication, targeted approaches for some children and
that kind of specialist intervention for others, but all hanging
together within one system. The challenge around personalised budgets,
particularly if they bought in speech and language therapy, would be
that you could end up with fragmentation, which would not be very cost
effective and might not serve the individuals as well as they could be
served.

Jane
Friswell: May I add to that? There are also the
practical implications of managing that fragmented approach to the
development of services within schools. That is likely to fall to the
SENCO. Consequently almost delivering a personalised level of service
for one child who may have similar needs to a range of children within
that school is not a sensible approach.

Q
154Steve
Reed: Which direction would that push you towards: more or
less personalisation given the risk of
fragmentation?

Wendy
Lee: You would need to think carefully about how
parents chose to spend that and how some of those services were
brokered. I can see real trouble with speech and language therapy in
terms of that fragmentation. A broker who looked at the whole system
and at personalised budgets and almost brought some of those together
to think how it could support not just the individual, but the
individual within the system, would be the way to go
forward.

Q
155Steve
Reed: So personalisation within
parameters?

Wendy
Lee: Yes, and differing elements for different things
that people want to spend the money
on.

Kate
Fallon: There was a report out recently that you may
well have seen: the MaSt project, the research from the Institute of
Education. It suggested that the more additional personalised support
that children have in classrooms does not necessarily lead to better
outcomes. What matters is the quality of the teaching and the
responsibility of the teacher for all the children. So if you were
looking at using personal budgets, you have to make sure that that
support which is purchased with those personal budgets goes to
embedding and improving the whole school approach to working with the
children so that you do not get that fragmentation within the
classroom. It is about the quality of the whole class and the whole
school that will make the most difference to the
child.

Q
156Caroline
Nokes: I am sorry, but this is again directed at Kate, who
seems to have been on the spot all afternoon. This is question about
mental health as well as physical health. Are you confident that the
health and care plans will embrace equally the needs of those young
people with SEN who also have a mental health need?

Column number: 72

Kate
Fallon: Am I confident that they will? Not as yet. I
am not sure that many of the pathfinders that have been developing the
new education, health and care plans have focused particularly on
mental health needs. Perhaps that is something that we need to go back
to the pathfinders to see if that will be in the next stage of the
development of some of them. Again we come back to the education,
health and care plan not being the only way of meeting children and
young people’s needs. Many children’s emotional and
mental health needs can be met at that wider level within a school
setting if the teachers know what they are doing and have that almost
team around a school approach of, dare I say, educational
psychologists, counsellors and other staff who have developed their
skills in supporting the emotional and mental health needs of
children.

There have
been some very good projects. The targeting approach to mental health
services carried out in the past couple of years, looking at bringing
mental health professionals into and supporting schools without the
need for children to have education, health and care plans, was found
to be very effective, so it is about learning from that. I do not know
about the current education, health and care plans. I do not see why
they should not be able to do it, but they would need to be depending
on the wider services that ought to be available via the local
offer.

Q
157Caroline
Nokes: Thank you. Entirely unrelated to that, you
mentioned that it is important that assessments be done in a timely
manner, but are you confident that the provisions in the Bill will
ensure that assessments are of the highest
quality?

Kate
Fallon: The current time frames for statements help
towards there being good-quality assessment, if the professionals
involved in the statutory assessment have known the child over a period
of time before going into the statutory assessment. What is crucial is
that assessments are not seen as a
one-off—either/or—diagnosis, but that assessments are
based on having seen the child, being able to know the context in which
the child is operating and using the professionals working with the
child and the parents on a day-by-day basis to try out different
things. Therefore, the assessment report, if you like, that goes into
the education, health and care plan would actually take into account
different ways of working with the child, so that you find out what
works best for that individual
child.

I
am conscious that the pathfinder projects that seem to be proving most
successful with parents include meetings of all the professionals who
are going to provide individual specialist assessments, talking
together with the parents at the beginning of the process and talking
together at the end. The time scales have got to ensure that you can
build in that talking-together time, as well as individual
professionals having the time to get to know the child. Sorry that was
long-winded.

Caroline
Nokes: No, that is
fine.

Q
158Mrs
Hodgson: I have a question for Wendy. As you will be
aware, the majority of children with speech, language and communication
needs do not have a statement, so they are probably not likely to have
an education, health and care plan. How confident are you

Column number: 73

that their needs will be met under the school-based category and the
local offer, as they currently are in the Bill? Obviously, that is
without having seen the new code of
conduct.

Wendy
Lee: We would like to see almost a minimum standard
nationally for the common framework for the local offer. To go back to
the identification piece, we know that such children are
under-identified. We know that there are vast numbers, and that it is
the most prevalent childhood disability. We are worried that, because
so many children will fit into the local offer piece, the danger is
that their needs will be missed or
unmet.

For
me, the local offer is almost a litmus test for SLCN. If we can get the
local offer right for SLCN, I think that we can get it right for most
children. It is about that robust framework and that standard set for
local authorities, and dropping that down from the strategic level to
the strategic level in schools—so that school leaders know what
they need to look for and how to interrogate their data for children
with SLCN; that the identification piece sits with them as
well—and that real graduated approach into schools, with
“quality first” teaching targeted on specialist
interventions.

To
go back to the assessment piece, what is really important for children
with speech and language difficulties is the ability to profile those
children carefully and to monitor their progress over time—they
change over time—which can support really positive outcomes for
those children. There are times when they will not need that much
support, because of the nature of the context, and other times when
they will need quite significant support, again because of the nature
of the
context.

To
go back to the mental health issue, there are direct links between
children with SLCN and mental health, and direct links between
emotional and behavioural needs for those children. Again, it is just
about having the local offer tight and robust—having that
information available to local authorities and schools to ensure that
those children’s needs are identified and met. Again, you have
loads of evidence about what really works for those children. We have
strong evidence from the Better Communication research programme and
from work that we have done at the
trust.

Q
159Mrs
Hodgson: Once those needs are met with the children, there
is always the issue at the moment about who pays. Does health or
education pay for the speech therapy? Obviously, we have not seen the
detail of the duty on health, but do you envisage that, hopefully, it
would become clearer? Who do you think should pay for speech
therapy?

Wendy
Lee: That is a really good question. For children
with an education, health and care plan, if it were the same as the
statement of educational needs, it is the responsibility of education
to ensure that those needs are paid for by education. What would be
interesting is the joint commissioning piece and whether we look at
pooled budgets to cost the needs for children’s speech and
language therapy. Again, as Kate says, it is not just about the
education, health and care plan, but about ensuring that
children’s speech and language therapy is provided for through
the local
offer.

The
universal staff need support from specialists to make sure that they
know how to identify and support the children in the classroom. Without
that specialist

Column number: 74

support, you end up with a work force that do not know how to identify
children who then go on to have longer term needs in literacy, poor
attainment, behaviour issues and so on. Specialists are expensive but,
in the long term, they save a lot of
costs.

Q
160Jessica
Lee: My question is for Kate as well. You said at the end
of your notes about the Bill that you welcome the extension of the age
of young people to those aged 19 to 25. You go on to say that that will
require some adjustments within services and work force planning. That
is a very good practical point, and I just wondered if you have any
further thoughts on what those practical issues may be and,
particularly with the work force point, how we would go about beginning
to engage with
it.

Kate
Fallon: Forgive me, but I was looking at it
particularly in the context of educational psychologists who currently
work with children and young people up to 19 years old, if they are
still in special schools. That does not mean to say that they do not
have the skills and knowledge to be able to work with young people
right through to
adulthood.

To
pick up Pat’s earlier point about the training, my profession is
very small. We clearly have the skills and the knowledge to be able to
support the work of 19 to 25 year-olds. If we are looking at some
strategic approach to training in the future, we need to ask,
“Do we actually need to be training more educational
psychologists? Can the current local authority services be reframed so
that they can sell services to colleges and even workplaces if
apprenticeships are to cover the education, health and care plan as
well? We must have a really good look and say, “How many more
young people will be covered by education, health and care plans in the
future? What service, which professionals do we need with the skills to
support them, and do we have them in
place?”

Wendy
Lee: The whole issue of the universal work force is
key. In further education, they may not have had opportunities to have
training and support for working with children and young people with
special educational needs. Particularly with children with speech,
language and communication needs, do they know how they would support
those children and young people, how they would scaffold the language
of those young people and, if they have additional alternative and
augmentative communication needs, how that would be supported in FE, as
well?

Jane
Friswell: That is the case. It has been reflected in
the number of attendees at the SENCO training, delivered by NASEN and
funded recently by the Department. We have had an influx of FE
providers occupying that SENCO role, who were extremely grateful to
have accessed just one day’s training, one day more than they
have had in developing their knowledge and skill set in meeting the
needs of young people, and accessing their institutions. It is a huge
gap in work force development, post-16 provision. The staffing needs
for training could be
huge.

Q
161Pat
Glass: I want to clarify something that Wendy said. Wendy,
you said that if speech and language is identified on a statement, it
is the responsibility of education. My understanding is that that is
not correct, that the legal duty and the funding lie with health, and

Column number: 75

that case law has said, over years, if health fails to provide, which it
so frequently does, the responsibility falls on education. Kate, now
that it looks as though we will have the statutory duty on
health—and that health will provide for what is a statutory
health duty, for which it has the funding, arguably—do you think
that that will have an impact on standards, given that in the past, so
much education money has been spent on health
provision?

Kate
Fallon: Quite a lot of money has been spent on
procuring speech and language therapy. I think that a lot of that money
could be better spent in helping the interface between speech and
language therapists, teachers and school staff, and on language
development.

In a previous
life, I did some work on commissioning speech and language therapy with
an education budget, and it was quite interesting talking to them about
what support children needed in a classroom. Very often, it came back
to it depending on what skills and knowledge were already there in the
classroom. If there are teachers and non-teaching staff who do not have
a good level of knowledge of language development, more speech and
language therapy time is required. We were actually paid for more and
more speech and language therapy work. In fact, some of that money
could have been diverted to supporting the ongoing training of teachers
and non-teaching assistants to have a better understanding, so that
speech and language therapy advice, when it comes, is being given on
fallow ground that will bear better fruit than it sometimes has in the
past.

Q
162Mr
Timpson: One of the aims of the Bill is to try and tackle
the transition periods through education—particularly moving
into education, from primary to secondary, and beyond secondary, which
would currently be into a different system of assessment. In order to
ensure that there is the best consistency and co-ordination of
assessment and support through transition periods, what do you think
are the most important elements that should be put in place to have
that transition as smooth as possible?

Jane
Friswell: We talked earlier about the critical role
of a key worker for some families. Certainly, that is an extremely
anxious time, not only for children and young people, but equally, for
their families, so additional support around key working would be
critical for some families. In schools, it is usually the case that the
SENCO tends to pick up the role of the key worker, and that is often a
huge piece of work, supporting children from primary through to
secondary, and from secondary, and so on. Therefore, I certainly think
we need to look at the implications for SENCOs, particularly, and at
the added work load that is often incurred as a result of wanting to
tailor and personalise that passage through to the next
provider.

The voice of
the child and the young person also needs to be heard much more clearly
at transition points. That can often be overlooked, and I would
certainly like to see some strengthening around children and young
persons’ views being held central to the transition planning
process, particularly post-school. I feel, at the moment, that that is
often not heard particularly well at a local level, and that certainly
would need to be reflected and embedded within the local
offer.

Column number: 76

Q
163Mrs
Hodgson:I have a final quick question for NASEN. I
know how you advocate that there should be better work-force
development for the whole work force within the mainstream classroom,
for obvious reasons, which we spoke about earlier. Do you think that
there is a missed opportunity with the
Bill?

Jane
Friswell: I think the school offer is particularly
critical. We talked earlier about having some form of national
framework—national standards—around the local offer. From
the school perspective, it is particularly important that schools are
very clear about what is expected of them, in terms of the delivery of
services that local parents are going to want for their children, and
certainly, it is important to have the opportunity to tailor
that—to personalise services more. Not only are there challenges
here, but there are great opportunities. Personal budgets may have a
key part to play in that, in terms of informing how schools can
interface better with parents, raise levels of parental engagement, and
develop future services that will look different, and rightly so. There
is a basic offer here that needs to be on the table for every child in
every school, and we need to be clear about that. I would certainly be
looking for guidance from the revised code of practice for
that.

The
Chair: I am afraid we have to finish there, because it is
a quarter past 4. Thank you very much for your assistance. It was a
great
contribution.

4.15
pm

Sitting
suspended.

Examination
of
Witnesses

Di
Roberts, Russell Hobby and David Bartram gave
evidence.

4.30
pm

The
Chair: Can I give our new panel a very warm welcome? Thank
you for coming along. Can I ask you briefly to introduce
yourselves?

Di
Roberts: My name is Di Roberts. I am principal of
Brockenhurst college and I am representing the Association of
Colleges.

David
Bartram: I am David Bartram, assistant head teacher
of Lampton school in Hounslow and SEN lead for the London Leadership
Strategy.

Russell
Hobby: I am Russell Hobby, general secretary of the
National Association of Head Teachers, which represents heads in most
of the primary and special schools in this
country.

Q
164Mrs
Hodgson: I will start with David Bartram, if I may.
Welcome. In your statement, you talk about the importance of good
leadership when it comes to improving outcomes. How might that be
achieved in policy terms? How would you translate that into
policy?

David
Bartram: My view is that it is really important that
the Bill does not sit in a vacuum away from other educational changes.
It is really important to make sure that there is not a divide between
the legislation and how it is playing out on the ground at the moment.
System leadership has a really critical role to play, in terms of both
the engagement and the implementation of the Bill.

Column number: 77

If
you look at teaching schools, organisations such as the London
Leadership Strategy and Challenge Partners are all practitioners
looking to lead the school improvement agenda. System leadership is one
of the biggest changes to school improvement that we have seen. It is
in the White Paper when it talks about teaching schools and so on, and
it is very different from the traditional top-down approach in terms of
advisers and SIPs.

Teaching
schools are not mentioned anywhere in the Bill itself, however. The
role of school-to-school support, looking at how the knowledge in terms
of outstanding SEN and inclusion already sits within the system, is
about how we become more effective at moving that knowledge around the
system.

Q
165Mrs
Hodgson: I will come back to you on another topic in a
moment. I will just move on to Russell Hobby, following on in the
leadership theme. Clearly, the quality of the leadership is important
in ensuring that schools provide well for children with SENs. Do you
think that heads and leadership teams have enough expertise in that
regard?

Russell
Hobby: I think that they will need expertise in two
separate areas. The success of the education, health and care plans
depends fundamentally on collaboration between the different
professional groups. There is nothing particularly in the Bill itself
that will make that collaboration work; it depends on the effectiveness
of leaders not only in schools but in all three of those
professions.

We have been
here several times before with several different attempts at this, and
I am very worried about effective collaboration. The skills in
collaboration and across professional working are going to be critical,
but also, at a specific technical level, understanding the different
sorts of special needs and how to diagnose and develop provision for
them is going to be a critical part of the whole leadership
team.

There,
particularly when it comes to low incidence special needs, it is going
to be particularly important to work with leaders in special schools
and in other forms of specialist provision. The ability to get
professionals in special schools involved early in mainstream schools
to help diagnose the particular needs is a way of expanding the
repertoire.

Teachers will
come across some of the particular issues fairly rarely within their
careers. Particularly when you are cutting down on School Action and
School Action Plus, if you are also cutting down on early
identification of need, you are going to run into some quite
significant problems. We need to find ways to maximise the crossover
between mainstream and special
education.

Q
166Mrs
Hodgson: To follow that up, do you think that identifying
and catering for SEN is currently as prominent as it should be in
initial teacher training and continuing professional development,
especially with regard to the high incidence needs, as you
highlighted?

Russell
Hobby: I think more could be done, yes. You can
certainly see elements of it, but very small amounts of time are
devoted to this. It needs to be every teacher’s responsibility
to be able to spot the early warning signs. They may not have the full
skill set to move into full diagnosis, but they will know when they can
move on from that. I do think that we need to put more weight on
that.

Column number: 78

Q
167Mrs
Hodgson: Coming back to David, do you think that
overidentification is as big an issue as it is claimed to be, or at
all? I know you sit on numerous organisations. Do your colleagues
across the board welcome these
reforms?

David
Bartram: Yes, they certainly do. I think the intent
of the Bill is excellent. I think there is and has been an issue with
overidentification; people are nervous about talking about that
sometimes, but it has been issue. From my point of view, it dilutes
both provision and sometimes prevents the appropriate intervention
getting through to the child. It sometimes depends on the type of
overidentification. I would say, for example, that speech and language
issues are sometimes underidentified and behavioural, emotional and
social difficulties are overidentified.

Q
168Mrs
Hodgson: BESD is
overidentified?

David
Bartram: I was in a school recently where over 60% of
the children on the register were categorised as having an issue around
behaviour and only 1% having an issue around speech and language. There
is an issue around the quality of the identification, the expertise
that sits within the school.

Q
169Mrs
Hodgson: Sorry to interrupt, but is that the fault of the
teachers who are identifying the children, in not being able to
identify what is behind the behaviour or the issue that needs
addressing?

David
Bartram: I think it is a combination of things. I
would link it back again in many ways to the leadership. It is about
having a breadth of different types of interventions that you could put
in place. If you do not have outstanding leadership, you will not
necessarily know or recognise the different types of interventions that
you need to put in place.

It comes back
to the issue around teacher training; it is absolutely critical that
that is enhanced and improved. I am hopeful. I know that Charlie Taylor
has experience in the SEN world and that he will recognise that. I
certainly think that there are a number of issues. It is also important
not to lose sight of the role of the SENCO, and how critical that is in
ensuring that their place within the school really is central to
driving through many of the
reforms.

Q
170Mrs
Hodgson: Can you expand on some of the children who are
being overidentified? You gave one indicator that it might be BESD. Is
it anything else? Like you, I am concerned about the
underidentification of all those needs such as dyslexia, speech and
language. There has to be a scale and balance. Where is the
overidentification?

David
Bartram: I am not a huge fan of categorising
children. It is about personalising learning and getting an absolutely
appropriate package of support, rather than putting children in
categories. Very often the overidentification occurs in categories
that, put quite simply, are easier to put children into, because they
require less expertise.

For example,
if you see a school in terms of its SEN structure, with one SENCO and
60 teaching assistants underneath, that will lack the expertise to look
at underlying issues such as specific language difficulties,
dyslexia,

Column number: 79

dyscalculia, ASD and so on. That requires a greater degree of expertise
and knowledge. That is why I think linking health more closely into the
Bill is very
important.

Q
171Mrs
Hodgson: Thank you. I have a question now for Di. Are
there any new duties in the Bill that you think colleges will struggle
with?

Di
Roberts: Can I just mention the two duties we are
very pleased about, so that we have the positive first? The removal of
the pre-16/post-16 divide is something we welcome because it will allow
us to do much more effective planning. Young people with SEN sometimes
arrive on our doorstep and we have no information at all. That
transition planning will be essential. Secondly, having a local offer
will be very helpful for young people and parents to have a much
clearer picture of what is available.

One of our
real concerns is who will monitor implementation of the legislation.
Currently, you may be aware that post-16 additional high-needs funding
has gone to local authorities, and we are already seeing local
authorities making local decisions that could have the impact of
destabilising the provision before the legislation comes into
effect.

Who will be
our Ofcom? Who will ensure that the legislation operates so that a
young person in Yorkshire has the same level of provision and the same
rules applied to them as a young person on the Isle of Wight? My real
concern is that if we do not have someone with that overview,
everything will end up going through the tribunal system and it could
be overloaded. Someone must make sure that local authorities are doing
this coherently and in a way that is fair across the
provision.

Q
172Mrs
Hodgson: With regard to inclusion in terms of enrolment
and course choices in further education, is that a bigger issue than
for children aged five to 15, and could the Bill address
that?

Di
Roberts: In terms of there being a facility for young
people to have a wider level of choice, which is important, this is
where the local offer could be instrumental in allowing young people
and parents to have an overview of what is available.

Again, one
thing is to make sure they have independent advice and guidance that
allows them to make the right decision for them, whether the young
person does that or, if they have severe learning difficulties and
disabilities, the parent. If a young person does not know what is
available, they will not be able to make the best choices. That
independent advice and guidance is important.

One concern
is that it will all sit within the local authority, so the local
authority will provide the information, advice and guidance, and
provide the assessment, commissioning and funding. Again, where is the
independent overview to make sure that it does not end up going through
to a tribunal if it falls
apart?

Q
173Mrs
Hodgson: My last question: can you say something about the
effect of raising the participation age that young people with SEN will
have in the FE world? The thinking is that many young people who are
currently not in education or training will probably opt for FE rather
than A-levels. Many of those young people may have SEN. Do you have any
evidence of that, or is it just a gut feeling?

Column number: 80

Di
Roberts: No, no. It is true that many young people
who are not in education, employment or training have underlying SEN
issues. One thing we were pleased to see is that young people who go in
and out of education at that age are now included in terms of their EHC
plan and the inclusion of something like apprenticeships. That might be
a more effective route to get young people back into education and then
take them through the apprenticeship
route.

Q
174Mrs
Hodgson: Is that reflected in the funding? When those
young people are gathered up through the participation extension, is
there a reflection in the added burden on SEN for
FE?

Di
Roberts: There is an added burden on FE, and local
authorities now have the funding pot for that. Many of them are saying
that they have not seen an increase, even though the DFE is saying
there has been an increase of 9% to local authorities.

The concern
is that we will have young people on our doorstep. The local
authorities are saying that they do not have the funding available to
make things happen and how can I make a local authority do anything?
The same will be replicated throughout a lot of colleges. The DFE is
saying one thing; the local authority is saying another. The problem
will be that the young person will be in the middle of
that.

Q
175Caroline
Nokes: Following on directly from that, Di, who manages to
educate a number of the 16-plus students from my constituency, I just
want to clarify something. Once a student passes 19, is there a
difference in the funding rate that you will receive?

Di
Roberts: There is, and one of the concerns about the
Bill is the clause that says that local authorities should pay
“regard to age”. What exactly does that mean? We are
concerned that for students between 18 and 25 there may actually be
disadvantage compared with their younger counterparts. This is a Bill
that is to go from nought to 25 and if a local authority can make a
decision and say, “We have paid regard to their age”,
what does that actually mean? If it is not defined in the Bill, it
actually gives local authorities carte blanche to make decisions that
we will not be able to argue against, because they will say,
“Well, we’ve made them with regard to age, as defined in
the Bill”, but the Bill does not actually define what that
means.

Q
176Caroline
Nokes: I think you mentioned in response to Sharon
something about the colleges now having to implement the legislation
before it is enacted. Could you explain what additional pressures that
is putting on the FE
sector?

Di
Roberts:Previously, the funding has come
directly for high needs students—the sort of top-up funding that
is above £6,000, so it could be anything from £6,500
through to £19,000 or £25,000. That would be in a general
FE college; it might be more in a specialist college. Previously, that
funding came directly from the Education Funding Agency.

From
September this year, all that money has been redirected through to
local authorities. For instance, our college deals with five local
authorities. If you are a specialist college, you could be dealing with
as many as 50 or 60 local authorities. They are all asking for

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information in a different way and at a different time, and they are all
making local decisions about your baseline allocation for September,
which in our case is probably about 50% less than we
anticipated.

The amount of
work that we are having to put in to try to sort this out with the
local authorities is considerable, and the legislation is not in place
or there would at least be a framework that we could challenge the
local authorities on.

If I could
ask for one thing around that, and I know that it is probably not
within the realms of the Bill, it is that in the transition between
where we are now and when the Bill comes into effect there is a real
potential for destabilisation of what is currently happening in post-16
education. There needs to be some work by the DFE and the Education
Funding Agency to try to ensure that that destabilisation does not
happen.

If, because
of the first interaction with local authorities for about 20 years
around this issue, you lose the good will of the colleges that really
support the Bill and really want to make it happen, that could be very
negative. It would be such a
shame.

Q
177Andy
Sawford (Corby) (Lab/Co-op): Are there any new duties in
the Bill that you think schools will struggle with?

David
Bartram: I can offer a view of where some of the
anxieties of schools lie. At the moment, I think that those anxieties
are probably largely around how the personalised budget will play out,
because you are putting together an SEN team, staffing it and making
decisions around appropriate types of provision. A lot of schools are
moving towards, if you like, more of a multi-agency approach because of
the reduction in local authority capacity at the moment, and are
looking to bring in educational psychologists, speech and language
therapists, and so on. The degree to which the personal budget will be
taken up by parents is a question mark for schools.

Russell
Hobby: If you build on that, there is also a
potential conflict of interest between the school’s judgment of
what will raise standards of achievement for a student, and the holder
of the personal budget’s view on that. For example, if the two
groups wish to spend the money in different ways, I am not entirely
clear how that will be resolved. In principle, giving families more
control over their own destiny in this field is a positive thing to do,
but schools, as David has said, have to commit to skills and resources
over a relatively long term. They need some stability in how this will
be spent, and we need some way of arbitrating between those
two.

Q
178Andy
Sawford: Could you give an example of where you might see
that conflict
arising?

Russell
Hobby: There are already people advising families on
what they might be able to spend these personal budgets on, including
travel arrangements, alleviating holidays and care and so on. Those may
not, in the school’s judgment, be the right ways to spend the
money on these pupils. They may also have different views about the
types of institutions they would like to draw the specialist expertise
from and, for example, getting speech and language therapy and how much
of that is needed.

Column number: 82

In a similar
vein, there will also be conflicts between the judgment of schools and
health authorities in those regards, particularly as the emphasis is on
the medical provisions having an educational value. The judgment of the
school may be, “We need a day of speech therapy a week for this
student.” It may be the judgment of the relevant health
authority, in very budget-strapped times, that they need an hour a
week. I am not entirely clear how that would be resolved, and who would
take that up.

David
Bartram: That links to how a local offer will work
practically, as well as to making sure that the local offer does not
simply become a web page that tells people what is on offer generally.
Actually, it is about, hopefully, signposting parents to the best types
of provision. At the moment, the most popular way of trying to find a
speech and language therapist, or the very top one for your child, is
typing “speech and language therapist” into Google and
hoping that something comes up in your general area. There is a role in
making sure that parents get the very best type of support available.
Hopefully, that sits within the school, but where it does not, parents
need to know where they can go to find the appropriate support and
intervention.

Q
179Andy
Sawford: How might you be assured that the child is
getting the best type of support available? What assessment or
monitoring by the school might there
be?

David
Bartram: That is a really good point. I have seen
many schools where there is a great deal of provision, but actually the
outcomes are not what people would want. There is quite a lot of focus
in the Bill on provision. It could perhaps be argued that there could
be more focus on what the outcomes should be. It would certainly be
about looking at the impact of the different types of interventions
that are coming in and making sure that they are time-limited and that
the co-ordination of those interventions is appropriate. If you have
three, four or five different types of intervention taking place with
the same child, it becomes very difficult to monitor what the impact is
of that individual
intervention.

Q
180Andy
Sawford: I declare an interest in asking this question: my
wife is a special needs co-ordinator in a primary school with a very
high proportion of children with special needs, and where many children
have statements. How important is the relationship between the
professionals a SENCO would work with, including, for example, the
educational psychologist, and how important is the relative stability
of those relationships over time to delivering the quality of support
for children with special needs that you and parents would hope for,
and could that potentially be disrupted in this new
arrangement?

David
Bartram: Personally, I think the link between outside
professionals is absolutely critical when it comes to the progress of
children with SEN, whether we are talking about an educational
psychologist or a speech and language therapist. Although there is a
potential risk, there are also potential strengths. For example, at the
moment, schools get the outside agencies that already exist in the
authority; they do not necessarily have the choice of going elsewhere.
You can talk to many schools across the country, and some will tell you
that they have

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a fantastic EP or speech and language therapist, and others will say
that they have not, and they would like the flexibility to look
elsewhere. What is really important is that the local authorities of
the schools that I am going into are beginning to lack the capacity to
support the volume of children. They are getting more involved in
statutory assessment work and so on, and we must not lose that skill
base and relationship.

Russell
Hobby: I think instability is a significant risk in
this regard, because once these skills have gone from the system, they
will not be easy to obtain. When people conclude that they cannot get a
reliable stream of work in a particular area, they will move on from
that area, and it will be a struggle to get in the required specialist
support. This is often mediated by personal relationships. If you can
ring up to have a chat about a concern you have, rather than get a
formal intervention, that can be a powerful way of doing it, and you
will see these issues disappear.

That applies
to health and medical support as well. How fast can you get an early
medical diagnosis when almost nobody operating in the school
environment is qualified to do it, particularly when it comes to
children with mental health issues, for example? A speedy early
identification is absolutely critical. We also have to bear in mind
that the overlapping boundaries between health, social care and
education can be complicated. There are schools that deal with 24 local
health services. It is hard to sustain quality relationships across
that boundary.

Q
181Annette
Brooke (Mid Dorset and North Poole) (LD): It has long been
the case that some parents have more fight in them than others to
secure the best for their children. How do you think parents right
across the spectrum will be served by this new
system?

Russell
Hobby: If the local offer works out as planned, it
has a lot of potential to give them the information they need to act
on. The potential to create local offers beyond local authority
boundaries, and to have groups of local authorities, particularly in
metropolitan areas, working together, will be quite important as well.
There is low-incidence special needs provision for which people will
have to go far afield. It is potentially a strong way of delivering on
this.

David
Bartram: Most importantly, the Bill offers a degree
of transparency for parents around SEN that there has not been before.
Transparency is incredibly important, and is part of what the local
offer looks to provide. It could go further. Schools should advertise
what their offer is and what they can offer students in terms of
support and the different types of interventions. There is also perhaps
a role for schools to show how they identify children with SEN and the
different methods they use, because there are many different types
across different schools. The role of personalised budgets is, in
principle, absolutely correct; we will just have to see how it plays
out. We are not so sure about that at the moment.

Di
Roberts: I would certainly pick up on
Russell’s point about the local offer and making sure that it is
wide enough, so that children and their parents are able to get an
overview of what is available. It should be done in a coherent way, so
that they understand what is available; there should not just be a list
of provisions, with the families having to find out what it means. This
is why having some sort of independent advice and

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guidance is absolutely essential—somebody who will work in a
child’s best interests and say, “This is what is
available. These options would really meet your
needs.”

An
advocate for the child and the family is really essential, particularly
as you are talking about bringing together health, care and education.
That is one of the real strengths of this Bill. If parents are trying
to find their way through that, it could become even more confusing,
which would absolutely be against what the Bill is about. It is about
making sure that the advice they are given is for the child’s
benefit, and is not given because of who the funders are, or what is
available. It is about the child’s best
chance.

Q
182Annette
Brooke: Can I add into that? How can we make it better? We
have pupil-parent support and the so-called independent workers
employed by the local education authority. I have never quite believed
in their independence, because the cheaper option seems to be
recommended as the right one. How will it all be better in the brave
new
world?

Di
Roberts: By having the “Ofcom” that I
described. You do not want to end up with a situation in which the only
way to get resolution is to go to a tribunal; there should be some sort
of overview, so that an eye is kept on it to ensure that it is not
always the cheapest option that is used, and that what is done is for
the benefit of the young person. It will be a little bit like the Ofcom
world: never mind the local authority or the funding that is available;
it will be about going in and finding out what is best for that young
person and matching something to them. Someone saying, “This
local authority always goes for the cheapest option” may raise
some warning
flags.

Russell
Hobby: I also wonder whether there is a role, on the
larger scale, for the Children’s Commissioner in that
one—someone with the potential rights to spot that. I think the
Bill offers powers to take up individual cases, but I do not think that
they will be able to operate on the scale that this might need, except
where it is highly significant, but there is that option
there.

Q
183Bill
Esterson: Between you, you have expressed a lot of
concerns about the impact of the loss of specialism, the need for good
standards to be guaranteed, and rarely encountered needs, which Russell
mentioned. Is there something that could be added to the Bill to shore
up some of those points and ensure that the services are there, which
would overcome the issue of reliance on the local
offer?

Russell
Hobby: Possibly, if it were made clear, and there
were arrangements to build a local offer beyond the individual
authority boundaries. The Bill certainly does not prevent that
happening, but you could encourage it. There are small unitary
authorities that simply will not be able to give a comprehensive local
offer. Where that could be encouraged, that would be powerful. There
may be something that can be done to ensure that the boundaries of the
different authorities involved coincide more, but that stretches far
beyond the Bill, in terms of the structure of our education and public
services. Skills are built on stable conditions over time, so the
stable deployment of personal budgets would be another area to help
protect that. They are also built on the relationships between the
professions, so to go back to the earlier point, making sure that the
same people can work together over time is
important.

Column number: 85

Q
184Bill
Esterson: So these are issues for implementation, rather
than changes to the
Bill.

Russell
Hobby: Yes, to the extent that any provisions in the
Bill may prevent the local offer from being a regional offer, but I did
not see anything like that in there. It could, however, be explicitly
encouraged.

Di
Roberts: Is there going to be a minimum standard of
local offer—not necessarily a gold standard, though we would all
want it to be that, but something to make it clear that there will be a
minimum standard? That could be in the legislation and defined more in
the
regulations.

David
Bartram: My view is that we need to add an element of
school support to the Bill that does not exist currently. In the
schools that I have seen, there is some outstanding inclusion and SEN
practice. We need to get a little bit better at unlocking some of that
knowledge, because there is some practice out there that is not as good
and is not providing the service that it should to children with SEN.
We need to look at how we can match those scores up more effectively,
share that knowledge, and ensure that we are working with those schools
that are not performing as they should. For me, that is not necessarily
about the role of Government as such; it is about the role of
practitioners, leading that
change.

Q
185Bill
Esterson: So sharing good practice and collaboration,
rather than
legislation.

David
Bartram: Absolutely. If you have a look at
London’s results, it was the lowest performing region in 2003,
and by 2008 it was the highest performing region. That was a result of
experienced, successful heads working with schools in difficulty in
challenging circumstances. Actually, there is no reason why the
children with SEN in this country could not benefit hugely from sharing
the outstanding practices of many committed SENCOs, assistant heads of
inclusion, and SEN practitioners out there at the
moment.

Q
186Pat
Glass: Russell, may I ask you about initial teacher
training and CPD—would you have liked to have seen that in the
Bill? In particular, I am thinking about the many times I asked head
teachers what their biggest problem is, and they almost always said
behaviour, but when I asked them what they are doing on CPD, they would
say that it is somebody else’s problem.

Russell
Hobby: I am not entirely sure. That is a detailed
level for the education training providers to get into, but we
certainly need to be clear that initial teacher training should
include—

Q
187Pat
Glass: I am thinking more about
CPD.

Russell
Hobby: On CPD, rather than initial teacher training.
There is a requirement for SENCOs to maintain a certain level of
qualification, and I think that that is an important part of that.
Again, I do not think that you can necessarily specify in detail what
sorts of CPD a school should provide, but it is the case that good
behaviour management will remove some of the overidentification of the
BSED issues. Ofsted’s approach that you need to check the
quality of provision first before finding a special need is absolutely
the right one to be taking. Schools are investing in that and they
will

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be held accountable for the quality of their discipline management, but
I suspect that you have the levers that you need through the Ofsted
inspection framework for achieving that, rather than through the Bill
itself.

Q
188Pat
Glass: I was thinking more about the local offer. When we
look at the framework around that, should we look at CPD within
that?

Russell
Hobby: I understood the local offer to be expressed
in terms of the services and provisions that will be accessible to
parents, but I think that if you got to the extent where you were
starting to define the quality of the local offer and imposing certain
standards, being able to talk about the skills, services and
specialisms available and holding the local offer to account for those,
I think that you would find that CPD would become one of their key
measures for achieving that. Perhaps that is your route into doing
that.

Q
189Pat
Glass: Thank you. David, I do think that there is
overidentification of SEN in this country and really huge
overidentification in certain categories, and we talked about that
earlier. In my experience, if you look at School Action, you will see
that there is a huge number of summer-born children in there and an
awful lot of children from less well-off homes. Nevertheless, those
children have needs, so what would you like to see in the Bill that
does not overidentify SEN, but does not neglect the real needs of those
children?

David
Bartram: I would like to see an emphasis on quality
first teaching. For children with SEN in mainstream schools, wherever
they are on that stage, they will spend 90% to 95% of their time in the
classroom. There needs to be a real focus on ensuring that they are
receiving appropriately differentiated lessons, teachers are skilled up
and aware enough of the different types of needs that children have,
and schools are given the flexibility to create curricula that are
appropriate.

If you look
at the number of exclusions, for example, the jump is greatest between
the transition point of year 6 and year 7. There are many
reasons for that. I know that I am generalising here, but children with
autistic spectrum disorder, for example, benefit from routine; children
with issues around emotional difficulties benefit from having that
secure relationship with the teacher and so on. A lot of children with
SEN find that transition point difficult, which is why they are
over-represented in those
figures.

Looking
at bespoke curricula for groups of children in year 7—I am not
talking about sink groups that separate those children, but, actually,
some of the schools that have been really successful in this area have
looked at a 30% or 40% primary-type curriculum, with more project-based
learning, delivered by a primary-trained teacher in year 7. That has
had huge benefits in reducing exclusions, raising attainment and, very
importantly, raising the attendance of children with SEN at school,
which for me is one of the biggest indicators of whether a
school’s SEN policy is
effective.

Q
190Mrs
Hodgson: A quick-fire question. It might just be a
yes-or-no question; I am hoping it is. Should special educational needs
co-ordinators be part of the senior management
team?

Column number: 87

Russell
Hobby: Yes, if the school is large enough to sustain
that. Where it is not, you could have a shared SENCO role across a
federation that would be on the senior team.

David
Bartram: I would say yes, but I would also add that
the SENCOs should be among your best teachers, if you like. They should
be the people who are able to lead from the front, in terms of the
quality of their teaching. Their teaching should be consistently
outstanding, and that is an important addition.

Di
Roberts: Not in colleges, because they are
significantly larger in size and diversity of offer, but they should
have a senior and high profile. They need a high
profile.

Q
191Mrs
Hodgson: So there should be somebody senior who leads
SEN?

Di
Roberts: Yes. You will find that in colleges, but it
will not necessarily be the SENCO. For instance, one of my senior
managers will have responsibility for foundation learning, which will
include having responsibility for our
SENCO.

Q
192Mrs
Hodgson: Right. So that person will have responsibility
for the
SENCO?

Di
Roberts: Yes.

Q
193Mrs
Hodgson: Do any colleges have the person who is
responsible for SEN in the senior management team, or is it never done
that way?

Di
Roberts: I do not know of any college that has a
qualified SENCO on the senior management team. It tends to be that you
have somebody who has responsibility for that area of provision, and
then you have your specialist SENCO, who is directly responsible. It is
quite a different structure in colleges.

Q
194Mrs
Hodgson: A question about personal budgets. In your
experience, with regard to parents’ capacity, if they choose to
take on responsibility for the personal budget, how do you feel they
will cope with that? What impact could those parents’ choice
about how to spend that money have on capacity within the school? How
will it affect shared services such as speech therapy or a joint
teaching assistant who might have been paid for out of that
funding?

Russell
Hobby: Probably that could be best managed by
creating some sort of service level agreement or contract for how the
money will be spent over a reasonable period of time as well. It would
not be at an arbitrary level; they would be entering into a long-term
relationship with the institution and the level of services. That gives
someone the opportunity to look over it and see whether it is suitable,
it gives the school confidence that it will be able to commit to that
provision for a reasonable period of time and, of course, it gives the
parents or family something to hold the school accountable to. Perhaps
we could develop that thought about what the budget will be spent on
once it is there and what the contract is, in formal terms, for that.
We could do some work with that.

David
Bartram: Critical to the success of any SEN
department or inclusion team is the relationship that it has with
parents. It is possible that the personalised budget will not
necessarily refocus that relationship but

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focus it more closely. It will be absolutely crucial for parents to have
trust in how the school develops the provision for the child. I suspect
that for the most part, there will not be huge problems in the delivery
of personalised budgets, because most parents trust the school’s
provision and have that relationship. It will be when that relationship
starts to break down that we will need to look quite closely at how
that particular situation is being managed.

Di
Roberts: Some of our adults with learning
difficulties and disabilities are already using their personal budgets
in our college, and they are using them very effectively. I can see
that that could easily be replicated for the younger
age.

The
Chair: Thank you very much. I am afraid that brings us to
a quarter past 5, so we have run out of time. Thank you very much for
coming along and letting us have the benefit of your
expertise.

Examination of
Witness

Dr
Maggie Atkinson gave
evidence

5.15
pm

Q
195The
Chair: Last but not least in today’s evidence
session, Dr Atkinson. Would you like to introduce
yourself?

Dr
Atkinson: I am the Children’s Commissioner for
England. Many of you will, I hope, already have seen our child rights
impact assessment on parts 1 to 3 of this very important Bill. We
welcome the opportunity to engage in conversation. You will know that
the reform of my office is also in there, and I could talk for ever
about that. The CRIA does not talk for ever about that, so perhaps that
would be the wrong starting point, but we are in your hands. We
recognise how complex and multi-layered this piece of legislation is,
but we see it as a fantastic opportunity for the country to step right
into the middle of the rights of the child and deliver on those
rights.

The
Chair: I was not inviting you to make an introductory
statement.

Dr
Atkinson: Apologies. I had been led to believe that
you
would.

The
Chair: What we are doing is asking questions. By asking
questions, we will ensure that the Members who are looking after the
legislation address the issues that they think are important. I am sure
you will have plenty of opportunity to make your
points.

Q
196Lisa
Nandy (Wigan) (Lab): Thank you, Maggie, for coming and
giving evidence to us today. Do you have any concerns about the Bill as
it is currently
drafted?

Dr
Atkinson: We have some. If I start with special
educational needs, which is the one about which we probably have
fewest, our issues are about the very vulnerable children who end up in
detention. We visit

Column number: 89

children in detention all the time, as the Committee is no doubt aware.
If I go into a secure forensic mental health setting, where people may
have committed a crime and be incarcerated, but there is a mental
health issue alongside it, their entitlement to education and, if they
are statemented, the continuation of what that statement requires, is
not an
issue.

If
we go into a young offenders setting—a secure training centre or
a secure children’s home where there are youth justice
beds—many of the youngsters in those settings are children with
special educational needs, and the Bill proposes that they are not
included in the provisions in the Bill for children with special
educational needs. We consider that there could easily be a useful
discussion, debate, amendments or whatever around that area. They
should be reinstated. Many of the children concerned have speech and
language and other difficulties.

We were
delighted to be told earlier today that clinical commissioning groups
are going to have a strong responsibility in the health part of the
EHCPs, so our CRIA is out of date even as you start to read it, because
we stressed very strongly that that should be the case. We agree with
the teacher unions that you have just heard from that the local offer
needs to be made far more robust, and really good practice needs to be
out there and capable of being learned from quickly, because children
cannot
wait.

Our
main concerns are in the other parts of the Bill, which we have
analysed in terms of our CRIA. We recognise that there is a need to
speed up processes and that fostering for adoption may be seen by many
in the sector as a positive way of doing that. We want everybody to
understand, however, that that is not the same as concurrent planning,
which leaves the birth families still with the potential right to be
reunited with their child after a period in care. We consider that the
content of the Bill presumes that—quite quickly—fostering
for adoption will lead to the birth family not having that presumption
of the possibility of a reunion with their children. We consider that
concurrent planning is extremely good practice and that fostering for
adoption may not sustain it.

We do not
agree with the need to change the due consideration for the ethnicity
of the child as part of the considerations that are undertaken when a
child is put up for adoption. We consider that what is in the
legislation at the moment is not a hindrance to children from BME
backgrounds being adopted. We consider that, at the very least, it
should be in the welfare check and that its removal is not
necessary.

Q
197Lisa
Nandy: Can I interrupt for a moment? Have you sought
children’s views on that change to the ethnicity
requirement?

Dr
Atkinson: Yes, I have met children and young people.
Some members of my advisory group are looked-after children or have
been in the system. Several weeks ago, I went to a very lively meeting
of the all-party group on looked-after children and care leavers. I was
taken to one side by a group of youngsters from BME backgrounds who are
currently in long-term foster placements. One of them said, “You
have to understand who I have been and who I am, as well as where I am
going and who you want me to be.” That was one of the strongest
things that has ever been said to me as

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commissioner. He was a very proud young man who considered that his
background, ethnicity and religion were not being taken into account
where he
was.

We
think that the right recruitment of the right adopters is far more
important than either slavishly looking for a match that is right for a
child, or claiming that you cannot possibly place them because the
match is not right. We do not think—from its recent reports
Ofsted does not either—that that is happening on a wholesale
basis. The law is a good safeguard as it currently
stands.

On
family justice, we think that the 26-week time limit is absolutely fine
for most cases, but that the Bill needs to be very clear, and/or the
technical papers that accompany implementation will need to be very
clear, about exactly what exceptional circumstances may need, because
there will always be exceptional circumstances that require far longer
than 26 weeks because of their
complexity.

We
consider that the whole care plan should come under judicial scrutiny.
If the Norgrove review’s aim to have judicial continuity is
achieved, judicial scrutiny should be one of those things that is
applied to the whole of the care plan. That should not create delays if
it is done well. It is
holistic.

On
family justice and private law, we consider that the law is already
robust enough to ensure the involvement of both parents where it is
safe for the child for both parents to be involved in their life after
separation. We know that the United Nations convention also guarantees
that. We do not see any reason for further amending the
law.

The
principle of focusing on mediation as part of a couple’s
separation is absolutely terrific. We would want a properly trained and
regulated mediation service, not just somebody who thinks that they are
a mediator. We feel that, as a result, there needs to be further
development on that. We also consider that there ought to be more
safeguards around that system—if it is only one meeting, who
does the preparation and the debrief? More to the point, who is
listening to the voice of the child in that mediation and where is the
safeguard for
them?

Those
are our basic reservations in what I must stress is a broad welcome to
the Bill. I hope that those of you who read or are about to read our
child rights impact assessment will find that we broadly welcome much
of what is in the Bill, but our reservations
stand.

Q
198Lisa
Nandy: That is really helpful—thank you. I wanted
to ask you one more thing; I am sure that other Members have questions.
I am becoming increasingly concerned that the Department for Education
does not have the same remit across Government as the previous
Department for Children, Schools and Families had. As a consequence, we
are seeing laws and policies being developed, such as the bedroom tax,
that have a profound impact on children that has not been taken into
account when policies are conceived. I pay tribute to the Minister, who
has taken that issue up with the Department for Work and
Pensions.

One
of the things that I think we would like to see is more account taken
of the impact policies have on children when the policies are in their
inception stage. I know that the Bill gives the Office of the
Children’s Commissioner the power to conduct a child impact

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assessment on Government policies. Would it be right for the
Children’s Commissioner to take that on across the entirety of
Government legislation? Do you think that the Children’s
Commissioner would be best placed to do that, or is it better for the
Government to take on that responsibility and for the Children’s
Commissioner to retain the power but not necessarily the duty to do it
in all
instances?

Dr
Atkinson: I think that the Children’s
Commissioner having the power is absolutely right. You will know that
we rove across Government. When the United Nations committee questions
the state party at some point after 2014, its expectation will be that
the state party will judge policy against the UN convention on the
rights of the child. The Children’s Commissioner’s remit
is to monitor and to hold to account for whether the state party has
done that. In the absence of the state party doing it, however, I would
rather we did it than no one
did.

To
come to your question about cross-governmental remits, there is an
issue in the Bill. For the most part, we strongly welcome the changes
to special educational needs, as I said, but the removal of the special
educational needs status of young people in incarceration in youth
justice settings runs absolutely counter to the statement by the
Secretary of State for Justice two weeks ago about creating an
educational landscape and putting education at the heart of youth
justice provision. Sometimes you need a me, who will go across
Government and say: “Do you know that this contradicts
that?” I know that there are cross-governmental working groups
of Ministers and of very senior officials on all sorts of pieces of
businesses which often happen without seeing the light of publicity and
have led to very strong work between the Under-Secretary of State for
Education who is here today, and his opposite number in the Department
of Health with responsibility for children’s health. Do not
underestimate how much is still going on, but I would also say that
child rights impact assessment should be a power on me, but a duty on
Government.

Q
199Jessica
Lee: To start with, I want to ask you a little about your
remit. In clause 77, there is a list of activities—not
exhaustive, of course—for the commissioner to undertake. I
wondered whether you were content with that. Do you think it is
sufficiently broad? Are there, for example, activities that are not
covered by the list that you would expect to see in the
Bill?

Dr
Atkinson: There is a variety of issues with how
specific you become when you try to describe a Children’s
Commissioner or, in some European nations, an ombudsman. Members may
know that we have had issues about how broad and how long the list of
specified groups of children is, for example. We recognise that there
is a very important transfer of a specified list of children across
from the children’s rights director to the remit of a new and
reformed Office of the Children’s Commissioner. We felt, have
always felt and have said so very openly, that the list ought to be
somewhat longer, because children on remand are in care; most of the
children I meet in mental hospitals have been in care; and children who
declare for asylum are placed into care.

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The issue is
how long you should write the list and, if you write a long enough
list, whether it will cover everything. There might still be something
about which someone says: “We should have put that on the list
as well, commissioner”, or: “It’s not on the list
so you can’t do it.” As the Bill stands, there are lots
and lots of permissive statements in it on the remit of the Office of
the Children’s Commissioner, which will enable the commissioner
to do what a job description does. You know that bit at the bottom of
your job description that says: “And any other things that your
boss thinks you ought to be able to do”? There is a tremendous
amount of that sort of language in the clauses of the Bill that are
about the Office of the Children’s Commissioner.

We
welcome that broadly permissive notion in the legislation because the
more you try to specify, the more, first, you will miss some children
off and, secondly, you will get to the stage where someone will say:
“You are not allowed into that piece of territory.” It
does not go as far as, for example, the general comment No. 2 from the
United Nations or the Paris principles, but I am not sure that we could
have got it to go a great deal further than it already goes. We will
make of it what we already make of limited resources in the English
office as it now stands. What will happen after the end of my term, who
knows?

Q
200Jessica
Lee: Moving to care proceedings, you were talking about a
definition of exceptional circumstances to go beyond 26 weeks. Are you
saying that there should be clear judicial
training?

Dr
Atkinson: I think it does lie in that part of the
territory, but there is also an opportunity here to enable a proper
discussion about what happens when, all of a sudden, a member of the
extended family, at the 11th hour, steps in. If there had been proper
family intervention and family group conferencing, and if that was on
the face of the Bill as one of the steps in the process, there is a
greater possibility of a member of the extended family stepping forward
before the point at which it would delay the case and send it right the
way back to the start. If that is on the face of the Bill and in the
judicial instructions, then there is the possibility for kinship care
to be taken more seriously and to be better built into a proper and
formal process. We think that the Bill is such a moment of opportunity
to get things right for these very vulnerable groups of children and
young people, and there is no reason why it should not be looked at
again.

Q
201Pat
Glass: Can I ask you about young people going into
custody, just so I am clear? I have had some experience of young people
in school with a statement going into custody—youth training
centres usually—and then, because of short sentences, coming
back. Currently, the statement is suspended, but it does not make a
great deal of difference because the youth training centres are more
geared up for this. Are youth offender institutes geared up? What would
be the real challenges if we continued the plan when they went into
custody?

Dr
Atkinson: I am going to come back to the young people
who speak to us when we go in and out of these settings. Very often,
they had embarked on the first stages of either a vocational or
academic pathway, or a mixture of the two. I have met youngsters
incarcerated

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for crimes committed when they were in the middle of a psychotic episode
who are doing 4 A-levels. They are not special needs kids, but the kids
alongside them who were special needs youngsters had had continuity of
their education provided by that mental health institution. If a mental
health institution, with all its problems and all its difficulties, can
do it, then the youth offending estate ought to be able to do it. That
seems to me to be the impetus that is driving Chris Grayling’s
statements of only a fortnight ago that education absolutely ought to
be at the centre of what they are
doing.

Very
often, a young person’s extremely bad behaviour, including
extremely antisocial behaviour that leads to crime and a sentence, is
about his or her frustration with not being able to deal with the world
as it is coming at them, and that is an educational need. Whether or
not they have a diagnosed educational need, the requirement should be
there on the system to have education and
rehabilitation—particularly citizenship education, as well as
literacy and mathematics—at its heart. To remove—even to
suspend—the statement of special education needs for a child who
has got those needs seems to me to be completely
counter-evidential.

Q
202Craig
Whittaker: Have you had time to look at the new powers for
your office? What do you think about them? Are they sufficient? Have
you had time to evaluate what extra resource will be needed to do that
to its
full?

Dr
Atkinson: We have looked in great detail at the new
powers, and we have said consistently that, broadly, we strongly
welcome those new powers. To make the primary function of the English
Children’s Commissioner to promote and protect the rights of the
child means, for example, that rather than being an associate member of
the European network that does my work, we can be a full member at the
table with 27 other nations. That may strike you as being a drop in the
ocean, but what it means is that we can far better advise on things
like the adoption of Council of Europe standards on child-friendly
justice and child-friendly health. We welcome the clarification of many
of our powers—that we can not only research and inquire, but
properly investigate—and that it is on the face of the
draft.

In
terms of resources, the resource was set at £3
million a year under my predecessor—by just thinking up a
number, we think. It was a flat cash sum that did not rise with
inflation and therefore there was something like 8% to 10% savings a
year for the first 5 years. When I arrived, my budget was £3
million; this financial year it has been £2.5 million. We
consider that having 0.2 of a full-time equivalent for health, nobody
for youth justice, 0.8 of a full-time equivalent for education and for
children’s rights, one full-time equivalent for asylum and
nobody else and a tiny admin team is already pushing us to the limit.
We have not had our 2013-14 budget confirmed, but we do expect a
further reduction. We live in constrained financial times and we are
very closely and strongly aware of that. My grave concern about the new
office is that, even though resources will come across with the office
of the children’s rights director’s team, you may create
a stronger office that is weakened simply because of the level of
resources that is assigned to it. That would be a negation of what you
want.

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Chair,
I feel extremely uncomfortable talking about legislation that is about
me. We have a briefing paper, and I am quite prepared to send it to
Members if they want
it.

Q
203Lisa
Nandy: I am sorry to return to something that is sort of
about you, but I just wanted to ask you a quick question about the
situation of the Scottish, Welsh and Northern Ireland Children’s
Commissioners, and particularly their ability to speak out about
matters that affect children in their jurisdiction, but are
non-devolved matters that do not fall within the Children’s
Commissioner’s jurisdiction. I know that after all of you
expressed concerns to Ministers, the decision was taken not to amend
the Bill, and I welcome that. My understanding is that that issue is
still not yet resolved. Is that the
case?

Dr
Atkinson: It is not resolved and it is not likely to
be resolved. We were very grateful, as a group of four, that the Joint
Committee took so seriously what we said and that the Minister and the
team at the Department made the choice not to amend the 2004 Act so
that I was, in effect, giving people permission to do what they wanted
to do. We were very grateful for that, and we will amend our very
strong memorandum of understanding and publish it, probably, this year.
We meet next week in Edinburgh to start that
conversation.

I
doubt that it is within the remit of a Department such as the
Department for Education and its counterparts in the other three
jurisdictions, because the issue is that you would have to reopen the
devolution settlements in order to make something that is reserved not
reserved any more. It is not reserved because of education legislation
or children, schools and families legislation; it is reserved because
of the settlement Acts for the three other jurisdictions. I doubt very
much that reopening those would leave Parliament a great deal of time
to talk about much else. Once you have opened the legislation fully,
you have opened it and I guess it might be open season, therefore, on
any other elements of the reserved and devolved issues that serve the
other three
nations.

We
consider that the compromise that we now have is about as good as we
will get it, and it will be down to us to make a robust case for a
memorandum of understanding that requires people not to have to come to
me to seek permission to go into youth offending institutes in Bristol
when there are Welsh children in them, for example. It is not a
comfortable place. The other three nations have come a long way since
the Children Act 2004. I know that the drafters spent a
great deal of patience and time trying to get a better solution than
the one we have now, but it just was not possible. We do as we
can.

Q
204Mr
Timpson: Could you tell us a little bit about the
experience you have had of an advisory board, albeit interim, and how
that has added value to the role that the office of Children’s
Commissioner is carrying
out?

Dr
Atkinson: Thank you—that is a great question.
When I first came into post, I recognised, having come from local
government, that I was not accountable to anybody. I was really
uncomfortable with that. We set up an interim advisory board, which has
four terms of reference and a period of operation. Two members, Lord
Victor Adebowale and Dame Jo Williams, have stood down, and we are
therefore looking for other

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members. We went for people who had a strong track record of being
critical thinkers and critical speakers, not only about
children’s issues but about public service, the media and issues
of societal relevance generally to families and citizens. Our current
advisory board includes the producer of “Blue Peter”; a
children’s rights barrister, who can be very acerbic when he
wants to be; somebody who has been a lifelong director and senior
operator in local government, and so on. We are about to recruit a
young
person.

The
board members have been absolutely invaluable. We meet only about four
times a year. We take the big strategic issues to them: for example,
how do we best position ourselves in a media landscape that does not
always take very seriously the notion that children have rights? How do
we best position ourselves so that the United Nations convention has
more credence and weight attached to it when we speak in public? Are
there ways in which we can better position ourselves so that people
listen more closely to what children have to
say?

Because
most of the board members come from anything but children’s
services backgrounds, they are very good at saying,
“That’s a battle that’s not worth fighting. This
is a battle that is. Can we suggest that you talk to this person in the
legal profession, because they have a lot of information and knowledge
about that area?” We may not have known that person, but because
they have those contacts, we can have those conversations. They are
always available on the phone and by e-mail, and I consider them
absolutely
invaluable.

The
Office of the Children’s Commissioner is a corporation sole.
There is no executive function and there will not be, because that is
not part of the 2004 Act that you have chosen to write in
amendments about. In the new realm of the new Office of the
Children’s Commissioner, the commissioner will still be a
corporation

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sole and there will not be an executive board. It will be advisory but,
goodness me, the members are worth their weight in gold.

The formal
structures of governance include a properly appointed—Cabinet
Office rules-appointed—audit and risk committee, which is
equally invaluable. I am the accounting officer for my organisation and
therefore responsible for public money. That audit and risk committee
holds, as it sees fit, both me and the entire organisation to account
for everything we do. We are internally and externally audited by
professionals as well. However, the board is about having a sounding
board, professional advice and
wisdom.

Q
205Mr
Timpson: Will you briefly explain your views on the
suggestion that the name of your office should include the phrase
“young people” as well as
“children”?

Dr
Atkinson: We took advice from UNICEF and the United
Nations committee when we responded to the consultation on the name.
UNICEF’s opinion is that, because the United Nations committee
says that if you are under 18 you are a child—and how long would
the website name and people’s e-mails addresses have needed to
be if we had become what some people wanted us to be, which was
“The Office of the Children and Young People’s Rights
Commissioner for England”?—there is a point at which you
have to use shorthand, and that is one of those
points.

The
Chair: Are there any other questions? No. Thank you very
much for coming along, Dr
Atkinson.